[Congressional Record Volume 167, Number 194 (Thursday, November 4, 2021)]
[Senate]
[Pages S8004-S8006]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 4513. Mr. MENENDEZ (for himself and Mr. Risch) 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.--
       (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.

[[Page S8005]]

       ``(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 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

[[Page S8006]]

     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).
                                 ______