[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     long-outdated framework for reporting on binding 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.

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