[Congressional Record Volume 168, Number 200 (Thursday, December 22, 2022)]
[Senate]
[Pages S10082-S10086]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
ENHANCING TRANSPARENCY ON INTERNATIONAL AGREEMENTS AND NON-BINDING
INSTRUMENTS
Mr. MENENDEZ. Mr. President, the committee finished a report
entitled, ``Enhancing Transparency on International Agreements and Non-
Binding Instruments.'' I ask unanimous consent that a copy of that
report be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
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 nonbinding 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long-outdated framework for reporting on binding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.
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 nonbinding instrument. The required
information must be provided in an unclassified form but may
include a classified annex.
Subsection l12b(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
nonbinding 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)(l). 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
[[Page S10083]]
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
nonbinding 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 p.9. The discussion below focuses on
one particular aspect: the expansion of the Case Act to
nonbinding 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 nonbinding instruments.
Updating the Case Act now is critical to address this
shift. Previously, there had been no uniform statutory
approach to nonbinding 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 nonbinding 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 INSTRUMENT IN SECTION 5947
The requirements of section 5947 apply to ``qualifying
nonbinding 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,'' 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.
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.
That view has not changed.
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-
[[Page S10084]]
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
nonbinding 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.
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.
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. 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.
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 of H.R. 7776
----------------------------------------------------------------------------------------------------------------
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 international NO............................ YES--Applies to qualifying
arrangements.. nonbinding 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 US
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 and NO--Only requirement is to YES--Text must be provided within
QNIs to Congress upon conclusion of text submit text to Congress 60 one month of being finalized
with foreign partner.. days 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 ensure NO............................ YES--GAO audit required once every
compliance and identify needed three years for first 9 years
improvements.. after enactment.
Requires the Secretary of State to establish NO............................ YES
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..
----------------------------------------------------------------------------------------------------------------
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.
[[Page S10085]]
``(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 cheesier 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 (A)(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
[[Page S10086]]
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.
____________________