[Congressional Record Volume 167, Number 192 (Tuesday, November 2, 2021)]
[Senate]
[Pages S7618-S7620]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 4151. Mr. MENENDEZ submitted an amendment intended to be proposed
to amendment SA 3867 submitted by Mr. Reed and intended to be proposed
to the bill H.R. 4350, to authorize appropriations for fiscal year 2022
for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the appropriate place in title X, insert the following:
SEC. __. ENHANCING TRANSPARENCY ON INTERNATIONAL AGREEMENTS
AND NON-BINDING INSTRUMENTS.
(a) Section 112b of Title 1.--
[[Page S7619]]
(1) In general.--Chapter 2 of title 1, United States Code,
is amended by striking section 112b and inserting the
following:
``Sec. 112b. United States international agreements;
transparency provisions
``(a)(1) Not less frequently than once each month, the
Secretary, through the Legal Adviser of the Department of
State, shall provide in writing to the appropriate
congressional committees the following:
``(A)(i) A list of all international agreements and
qualifying non-binding instruments approved for negotiation
by the Secretary or another Department of State officer at
the Assistant Secretary level or higher during the prior
month, or, in the event an international agreement or
qualifying non-binding instrument is not included in the list
required by this clause, a certification corresponding to the
international agreement or qualifying non-binding instrument
as authorized under paragraph (4)(A).
``(ii) A description of the intended subject matter and
parties to or participants for each international agreement
and qualifying non-binding instrument listed pursuant to
clause (i).
``(B)(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 qualifying non-binding instrument
provided under clause (ii) to become operative. If multiple
authorities are relied upon in relation to an international
agreement or qualifying non-binding instrument, the Secretary
shall cite all such authorities. All citations to a treaty or
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 shall explain the basis for
that reliance.
``(C)(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).
``(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).
``(iv) A statement of whether there were any opportunities
for public comment on the international agreement or
qualifying non-binding instrument prior to the conclusion of
such agreement or instrument.
``(2) The Secretary may provide any of the information or
texts of international agreements and qualifying non-binding
instruments required under paragraph (1) in classified form
if providing such information in unclassified form could
reasonably be expected to cause damage to the foreign
relations or foreign activities of the United States.
``(3) In the case of a general authorization issued for the
negotiation or conclusion of a series of international
agreements of the same general type, the requirements of this
subsection may be satisfied by the provision in writing of--
``(A) a single notification containing all the information
required by this subsection; and
``(B) a list, to the extent described in such general
authorization, of the countries or entities with which such
agreements are contemplated.
``(4)(A) The Secretary may, on a case-by-case basis, waive
the requirements of subsection (a)(1)(A)(i) with respect to a
specific international agreement or qualifying non-binding
instrument for renewable periods of up to 180 days if the
Secretary certifies in writing to the appropriate
congressional committees that--
``(i) exercising the waiver authority is vital to the
negotiation of a particular international agreement or
qualifying non-binding instrument; and
``(ii) the international agreement or qualifying non-
binding instrument would significantly and materially advance
the foreign policy or national security interests of the
United States.
``(B) The Secretary shall brief the Majority Leader and the
Minority Leader of the Senate, the Speaker and the Minority
Leader of the House of Representatives, and the Chairs and
Ranking Members of the appropriate congressional committees
on the scope and status of the negotiation that is the
subject of the waiver under subparagraph (A)--
``(i) not later than 60 calendar days after the date on
which the Secretary exercises the waiver; and
``(ii) once every 180 calendar days during the period in
which a renewed waiver is in effect.
``(C) The certification required by subparagraph (A) may be
provided in classified form.
``(D) The Secretary shall not delegate the waiver authority
or certification requirements under subparagraph (A). The
Secretary shall not delegate the briefing requirements under
subparagraph (B) to any person other than the Deputy
Secretary.
``(b)(1) Not less frequently than once each month, the
Secretary shall make the text of all international agreements
that entered into force during the prior month, and the
information required by subparagraph (B)(iii) of subsection
(a)(1) and clauses (iii) and (iv) of subparagraph (C) of such
subsection, available to the public on the website of the
Department of State.
``(2) The requirement under paragraph (1)--
``(A) shall not apply to any information, including the
text of an international agreement, that is classified; and
``(B) shall apply to any information, including the text of
an international agreement, that is unclassified, except that
the information required by subparagraph (B)(iii) of
subsection (a)(1) and clauses (iii) and (iv) of subparagraph
(C) of such subsection shall not be subject to the
requirement under paragraph (1) if the international
agreement to which it relates is classified.
``(3)(A) Not less frequently than once every 90 calendar
days, the Secretary shall make the text of all unclassified
qualifying non-binding instruments that become operative
available to the public on the website of the Department of
State.
``(B) The requirement under subparagraph (A) shall not
apply to a qualifying non-binding instrument if making the
text of that instrument available to the public could
reasonably be expected to cause damage to the foreign
relations or foreign activities of the United States.
``(c) For any international agreement or qualifying non-
binding instrument, not later than 30 calendar 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 copies of any
implementing agreements or instruments, whether binding or
non-binding, the Secretary shall submit such implementing
agreements or instruments to 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 30 calendar days after
the date on which such agreement is signed;
``(2) provide to the Secretary the text of each qualifying
non-binding instrument not later than 30 calendar days after
the date of the written communication described in subsection
(m)(3)(A)(ii)(II); and
``(3) on an ongoing basis, provide any implementing
material to the Secretary for transmittal to 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) The Chief International Agreements Officer of the
Department of State shall serve in the Office of the Legal
Adviser with the title of International Agreements Compliance
Officer.
``(f) Texts of oral international agreements and qualifying
non-binding instruments shall be reduced to writing and
subject to the requirements of subsection (a).
``(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) Notwithstanding any other provision of law, no
amounts appropriated to the Department of State under any law
shall be available for obligation or expenditure to conclude
or implement or to support the conclusion or implementation
of (including through the use of personnel or resources
subject to the authority of a chief of mission) an
international agreement, other than to facilitate compliance
with this section, until the Secretary satisfies the
substantive requirements in subsection (a) with respect to
that international agreement.
``(2)(A) An obligation or expenditure of funds that does
not comply with the prohibition described in paragraph (1)
shall not constitute a violation of paragraph (1) or any
other law if such violation was inadvertent.
``(B) For purposes of this subsection, a violation shall be
considered to be inadvertent if, not later than 5 business
days after the date on which a Department of State official
first learns of the violation, the Secretary--
``(i) certifies in writing to the appropriate congressional
committees that, to the Secretary's knowledge, the Department
of State was unaware of the violation at the time of the
obligation or expenditure; and
``(ii) satisfies the substantive requirements in subsection
(a) with respect to the international agreement concerned.
``(3) This subsection shall take effect on October 1, 2022.
``(i)(1) Not later than 3 years after the date of the
enactment of this Act, and not less
[[Page S7620]]
frequently than once every 2 years thereafter, 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) penalties or other recommendations for measures to
ensure compliance with statutory requirements.
``(3) The Comptroller General shall submit to 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.
``(j)(1) Not later than February 1 of each year, the
Secretary shall submit to the appropriate congressional
committees a written report that contains a list of--
``(A) all international agreements and qualifying non-
binding instruments that were signed or otherwise concluded,
entered into force or otherwise became operative, or that
were modified or otherwise amended during the preceding
calendar year; and
``(B) for each agreement and instrument included in the
list under subparagraph (A)--
``(i) the dates of any action described in such
subparagraph;
``(ii) the title of the agreement or instrument; and
``(iii) a summary of the agreement or instrument (including
a description of the duration of activities under the
agreement or instrument and a description of the agreement or
instrument).
``(2) The report described in paragraph (1) shall be
submitted in unclassified form, but may include a classified
annex.
``(3)(A) The Secretary should make the report, except for
any classified annex, available to the public on the website
of the Department of State.
``(B) Not later than February 1 of each year, the Secretary
shall make available to the public on the website of the
Department of State each part of the report involving an
international agreement or qualifying non-binding instrument
that entered into force or became operative during the
preceding calendar year, except for any classified annex or
information contained therein.
``(4) Not less frequently than once every 90 calendar days,
the Secretary shall brief the appropriate congressional
committees on developments with regard to treaties, other
international agreements, and non-binding instruments that
have an important effect on the foreign relations of the
United States.
``(k) The President shall, through the Secretary,
promulgate such rules and regulations as may be necessary to
carry out this section.
``(l) 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.
``(m) 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 `Deputy Secretary' means the Deputy
Secretary of State.
``(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)(A) The term `qualifying non-binding instrument' means
a non-binding instrument that--
``(i) is or will be under negotiation or is signed or
otherwise becomes operative 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.
``(B) The term `qualifying non-binding instrument' does not
include any non-binding instrument that is signed or
otherwise becomes operative pursuant to the authorities
provided in title 10 or the authorities provided to 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) Under clauses (i) and (ii) of subparagraph (A), the
term `contemporaneously and in conjunction with' shall be
construed liberally and shall not be interpreted to mean
simultaneously or on the same day.''.
(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; 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) Authorization of appropriations.--There is authorized
to be appropriated to the Department of State $1,000,000 for
each of fiscal years 2022 through 2026 for purposes of
implementing the requirements of section 112b of title 1,
United States Code, as amended by this subsection.
(5) Rules and regulations.--Not later than 180 days after
the date of the enactment of this Act, the President shall,
through the Secretary of State, promulgate such rules and
regulations as may be necessary to carry out section 112b of
title 1, United States Code, as amended by this subsection.
(b) Section 112a of Title 1.--Section 112a of title 1,
United States Code, is amended--
(1) in subsection (a), by striking ``(a) The Secretary''
and inserting ``The Secretary''; and
(2) by striking subsections (b), (c), and (d).
______