[Congressional Record Volume 168, Number 157 (Wednesday, September 28, 2022)]
[Senate]
[Pages S5239-S5241]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 5747. Mr. MENENDEZ (for himself and Mr. Risch) submitted an
amendment intended to be proposed to amendment SA 5499 submitted by Mr.
Reed (for himself and Mr. Inhofe) and intended to be proposed to the
bill H.R. 7900, to authorize appropriations for fiscal year 2023 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, 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 and non-
binding instruments; transparency provisions
``(a)(1) Not less frequently than once each month, the
Secretary shall provide in writing to the appropriate
congressional committees the following:
``(A)(i) A list of all international agreements approved
for negotiation by the Secretary or another Department of
State officer at the Assistant Secretary level or higher and
a list of all qualifying non-binding instruments described in
subsection (l)(6)(A)(ii)(II) approved for negotiation by the
appropriate department or agency during the prior month, or,
in the event an international agreement or qualifying non-
binding instrument is not included in the lists required by
this clause, a certification corresponding to the
international agreement or qualifying non-binding instrument
as authorized under paragraph (5)(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 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.
``(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) if
such text differs from the text of the agreement or
instrument previously provided pursuant to subparagraph
(B)(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) Not less frequently than once every three months, the
Secretary shall provide in writing to the appropriate
congressional committees the following:
``(A) A list of all qualifying non-binding instruments
described in subsection (l)(6)(A)(ii)(I) approved for
negotiation by the appropriate department or agency during
the prior three months, or, in the event a qualifying non-
binding instrument is not included in the list required by
this subparagraph, a certification corresponding to the
qualifying non-binding instrument as authorized under
paragraph (5)(A).
``(B) A description of the intended subject matter and
participants for each qualifying non-binding instrument
listed pursuant to subparagraph (A).
``(3) The information and text required by paragraphs (1)
and (2) shall be submitted in unclassified form, but may
include a classified annex.
``(4) 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
paragraph (1)(A) may be satisfied by the provision in writing
of--
``(A) a single notification containing all the information
required by paragraph (1)(A); and
``(B) a list, to the extent described in such general
authorization, of the countries or entities with which such
agreements are contemplated.
``(5)(A) The Secretary may, on a case-by-case basis, waive
the requirements of paragraph (1)(A) or (2)(A) with respect
to a specific international agreement or qualifying non-
binding instrument, as applicable, 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 90 days after the date on which the
Secretary exercises the waiver; and
``(ii) once every 180 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 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 (B)(iii) and (C)(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 (B)(iii)
and (C)(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 (B)(iii) and (C)(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 specified 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 (B)(iii) and (C)(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
appropriate congressional committees under subparagraphs
(B)(ii) or (C)(ii) of subsection (a)(1), not later than 30
days after the date on
[[Page S5240]]
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 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) notify the Secretary of the approval for negotiation
of a qualifying non-binding instrument within 15 days of such
approval;
``(2) 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;
``(3) 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;
``(4) 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
``(5) 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) 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 and
qualifying non-binding instruments 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) If the Secretary is aware or has reason to believe
that the requirements of subsection (a)(1), (a)(2), (b), or
(c) have not been fulfilled with respect to an international
agreement or qualifying non-binding instrument, the Secretary
shall--
``(A) immediately bring the matter to the attention of the
office or agency responsible for the agreement or qualifying
non-binding instrument; and
``(B) request the office or agency to provide within 7 days
the information necessary to fulfill the requirements of the
relevant subsection.
``(2) Upon receiving the information requested pursuant to
paragraph (1), the Secretary shall--
``(A) fulfill the requirements of subsection (a), (b), or
(c), as the case may be, with respect to the agreement or
qualifying non-binding instrument concerned--
``(i) by including such information in the next submission
required by subsection (a)(1);
``(ii) by providing such information in writing to the
appropriate congressional committees before provision of the
submission described in clause (i); or
``(iii) in relation to subsection (b), by making the text
of the agreement or qualifying non-binding instrument and the
information described in subparagraphs (B)(iii) and (C)(iii)
of subsection (a)(1) relating to the agreement or instrument
available to the public on the website of the Department of
State within 15 days; and
``(B) provide to the appropriate congressional committees,
either in the next submission required by subsection (a)(1)
or before such submission, a written statement explaining the
reason for the delay in fulfilling the requirements of
subsection (a), (b), or (c), as the case may be.
``(3) Notwithstanding any other provision of law, if the
requirements of subsection (a) have not been fulfilled with
respect to an international agreement within 45 days of the
date on which the Secretary made a request to an office or
agency as described in paragraph (1)(B), no amounts
appropriated to the Department of State under any law shall
be available for obligation or expenditure to implement or to
support the implementation of (including through the use of
personnel or resources subject to the authority of a chief of
mission) that particular international agreement, other than
to facilitate compliance with this section, until the
Secretary satisfies the substantive requirements in
subsection (a) with respect to that particular international
agreement.
``(i)(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
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) The President shall, through the Secretary,
promulgate such rules and regulations as may be necessary to
carry out this section.
``(k) 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.
``(l) 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 `Deputy Secretary' means the Deputy
Secretary of State.
``(4) 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)).
``(5) 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.
``(6)(A) The term `qualifying non-binding instrument' 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.
``(B) The term `qualifying non-binding instrument' 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.
``(7) The term `Secretary' means the Secretary of State.
``(8)(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 require
any action to have occurred simultaneously or on the same
day.
``(m) Nothing in this section shall be construed to
authorize the withholding from disclosure to the public of
any record if such disclosure is required by law.''.
(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:
[[Page S5241]]
``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 of section 112b of title 1, United States
Code, as amended by this subsection, have not been fulfilled
with respect to an international agreement or qualifying non-
binding instrument (as those terms are defined in that
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 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.
(6) Consultation and briefing requirement.--
(A) Consultation.--The Secretary of State shall consult
with the appropriate congressional committees on matters
related to the implementation of this Act and the amendments
made by this Act prior to 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 of State shall brief the appropriate
congressional committees on the status of efforts to
implement this Act and the amendments made by this Act.
(C) Definition of appropriate congressional committees.--In
this paragraph, the term ``appropriate congressional
committees'' means--
(i) the Committee on Foreign Relations of the Senate; and
(ii) the Committee on Foreign Affairs of the House of
Representatives.
(7) Authorization of appropriations.--There is authorized
to be appropriated to the Department of State $1,000,000 for
each of fiscal years 2023 through 2027 for purposes of
implementing the requirements of 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 by striking subsections (b),
(c), and (d) and inserting 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 subsection (b)(3)(A) of section 112b, shall be
made available by the Department of State upon request.''.
(c) Effective Date of Amendments.--The amendments made by
this Act shall take effect 270 days after the date of the
enactment of this Act.
______