[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.
                                 ______