S.Amdt. 5747

1. Adds SEC. __. ENHANCING TRANSPARENCY ON INTERNATIONAL AGREEMENTS AND NON-BINDING INSTRUMENTS wherever appropriate

   Adds a section

   Inserted: SEC. __. ENHANCING TRANSPARENCY ON INTERNATIONAL AGREEMENTS AND NON-BINDING INSTRUMENTS.

   Inserted: (a) Section 112b of Title 1.--

   Inserted: (1) In general.--Chapter 2 of title 1, United States Code, is amended by striking section 112b and inserting the following:

   Inserted: "Sec. 112b. United States international agreements and non-binding instruments; transparency provisions

   Inserted: "(a)(1) Not less frequently than once each month, the Secretary shall provide in writing to the appropriate congressional committees the following:

   Inserted: "(A)(i) A list of all international agreements approved for negotiation by the Secretary or another Department of State officer at the Assistant Secretary level or higher and a list of all qualifying non-binding instruments described in subsection (l)(6)(A)(ii)(II) approved for negotiation by the appropriate department or agency during the prior month, or, in the event an international agreement or qualifying non-binding instrument is not included in the lists required by this clause, a certification corresponding to the international agreement or qualifying non-binding instrument as authorized under paragraph (5)(A).

   Inserted: "(ii) A description of the intended subject matter and parties to or participants for each international agreement and qualifying non-binding instrument listed pursuant to clause (i).

   Inserted: "(B)(i) A list of all international agreements and qualifying non-binding instruments signed, concluded, or otherwise finalized during the prior month.

   Inserted: "(ii) The text of all international agreements and qualifying non-binding instruments described in clause (i).

   Inserted: "(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.

   Inserted: "(C)(i) A list of all international agreements that entered into force and qualifying non-binding instruments that became operative for the United States or an agency of the United States during the prior month.

   Inserted: "(ii) The text of all international agreements and qualifying non-binding instruments described in clause (i) if such text differs from the text of the agreement or instrument previously provided pursuant to subparagraph (B)(ii).

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   Inserted: "(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).

   Inserted: "(2) Not less frequently than once every three months, the Secretary shall provide in writing to the appropriate congressional committees the following:

   Inserted: "(A) A list of all qualifying non-binding instruments described in subsection (l)(6)(A)(ii)(I) approved for negotiation by the appropriate department or agency during the prior three months, or, in the event a qualifying non-binding instrument is not included in the list required by this subparagraph, a certification corresponding to the qualifying non-binding instrument as authorized under paragraph (5)(A).

   Inserted: "(B) A description of the intended subject matter and participants for each qualifying non-binding instrument listed pursuant to subparagraph (A).

   Inserted: "(3) The information and text required by paragraphs (1) and (2) shall be submitted in unclassified form, but may include a classified annex.

   Inserted: "(4) In the case of a general authorization issued for the negotiation or conclusion of a series of international agreements of the same general type, the requirements of paragraph (1)(A) may be satisfied by the provision in writing of--

   Inserted: "(A) a single notification containing all the information required by paragraph (1)(A); and

   Inserted: "(B) a list, to the extent described in such general authorization, of the countries or entities with which such agreements are contemplated.

   Inserted: "(5)(A) The Secretary may, on a case-by-case basis, waive the requirements of paragraph (1)(A) or (2)(A) with respect to a specific international agreement or qualifying non-binding instrument, as applicable, for renewable periods of up to 180 days if the Secretary certifies in writing to the appropriate congressional committees that--

   Inserted: "(i) exercising the waiver authority is vital to the negotiation of a particular international agreement or qualifying non-binding instrument; and

   Inserted: "(ii) the international agreement or qualifying non-binding instrument would significantly and materially advance the foreign policy or national security interests of the United States.

   Inserted: "(B) The Secretary shall brief the Majority Leader and the Minority Leader of the Senate, the Speaker and the Minority Leader of the House of Representatives, and the Chairs and Ranking Members of the appropriate congressional committees on the scope and status of the negotiation that is the subject of the waiver under subparagraph (A)--

   Inserted: "(i) not later than 90 days after the date on which the Secretary exercises the waiver; and

   Inserted: "(ii) once every 180 days during the period in which a renewed waiver is in effect.

   Inserted: "(C) The certification required by subparagraph (A) may be provided in classified form.

   Inserted: "(D) The Secretary shall not delegate the waiver authority or certification requirements under subparagraph (A). The Secretary shall not delegate the briefing requirements under subparagraph (B) to any person other than the Deputy Secretary.

   Inserted: "(b)(1) Not later than 120 days after the date on which an international agreement enters into force, the Secretary shall make the text of the agreement, and the information described in subparagraphs (B)(iii) and (C)(iii) of subsection (a)(1) relating to the agreement, available to the public on the website of the Department of State.

   Inserted: "(2) Not less frequently than once every 120 days, the Secretary shall make the text of each qualifying non-binding instrument that became operative during the preceding 120 days, and the information described in subparagraphs (B)(iii) and (C)(iii) of subsection (a)(1) relating to each such instrument, available to the public on the website of the Department of State.

   Inserted: "(3) The requirements under paragraphs (1) and (2) shall not apply to the following categories of international agreements or qualifying non-binding instruments, or to information described in subparagraphs (B)(iii) and (C)(iii) of subsection (a)(1) relating to such agreements or qualifying non-binding instruments:

   Inserted: "(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.

   Inserted: "(B) International agreements and qualifying non-binding instruments that address specified military operations, military exercises, acquisition and cross servicing, logistics support, military personnel exchange or education programs, or the provision of health care to military personnel on a reciprocal basis.

   Inserted: "(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.).

   Inserted: "(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).

   Inserted: "(E) International agreements and qualifying non-binding instruments that have been separately published by a depositary or other similar administrative body, except that the Secretary shall make the information described in subparagraphs (B)(iii) and (C)(iii) of subsection (a)(1), relating to such agreements or qualifying non-binding instruments, available to the public on the website of the Department of State within the timeframes required by paragraph (1) or (2).

   Inserted: "(c) For any international agreement or qualifying non-binding instrument for which an implementing agreement or arrangement, or any document of similar purpose or function to the aforementioned regardless of the title of the document, is not otherwise required to be submitted to the appropriate congressional committees under subparagraphs (B)(ii) or (C)(ii) of subsection (a)(1), not later than 30 days after the date on which the Secretary receives a written communication from the Chair or Ranking Member of either of the appropriate congressional committees requesting the text of any such implementing agreements or arrangements, whether binding or non-binding, the Secretary shall submit such implementing agreements or arrangements to the appropriate congressional committees.

   Inserted: "(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--

   Inserted: "(1) notify the Secretary of the approval for negotiation of a qualifying non-binding instrument within 15 days of such approval;

   Inserted: "(2) provide to the Secretary the text of each international agreement not later than 15 days after the date on which such agreement is signed or otherwise concluded;

   Inserted: "(3) provide to the Secretary the text of each qualifying non-binding instrument not later than 15 days after the date on which such instrument is concluded or otherwise becomes finalized;

   Inserted: "(4) provide to the Secretary a detailed description of the legal authority that provides authorization for each qualifying non-binding instrument to become operative not later than 15 days after such instrument is signed or otherwise becomes finalized; and

   Inserted: "(5) on an ongoing basis, provide any implementing material to the Secretary for transmittal to the appropriate congressional committees as needed to satisfy the requirements described in subsection (c).

   Inserted: "(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--

   Inserted: "(A) be selected from among employees of such department or agency;

   Inserted: "(B) serve concurrently as the Chief International Agreements Officer; and

   Inserted: "(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.

   Inserted: "(2) There shall be a Chief International Agreements Officer who serves at the Department of State with the title of International Agreements Compliance Officer.

   Inserted: "(f) The substance of oral international agreements and qualifying non-binding instruments shall be reduced to writing for the purpose of meeting the requirements of subsections (a) and (b).

   Inserted: "(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.

   Inserted: "(h)(1) If the Secretary is aware or has reason to believe that the requirements of subsection (a)(1), (a)(2), (b), or (c) have not been fulfilled with respect to an international agreement or qualifying non-binding instrument, the Secretary shall--

   Inserted: "(A) immediately bring the matter to the attention of the office or agency responsible for the agreement or qualifying non-binding instrument; and

   Inserted: "(B) request the office or agency to provide within 7 days the information necessary to fulfill the requirements of the relevant subsection.

   Inserted: "(2) Upon receiving the information requested pursuant to paragraph (1), the Secretary shall--

   Inserted: "(A) fulfill the requirements of subsection (a), (b), or (c), as the case may be, with respect to the agreement or qualifying non-binding instrument concerned--

   Inserted: "(i) by including such information in the next submission required by subsection (a)(1);

   Inserted: "(ii) by providing such information in writing to the appropriate congressional committees before provision of the submission described in clause (i); or

   Inserted: "(iii) in relation to subsection (b), by making the text of the agreement or qualifying non-binding instrument and the information described in subparagraphs (B)(iii) and (C)(iii) of subsection (a)(1) relating to the agreement or instrument available to the public on the website of the Department of State within 15 days; and

   Inserted: "(B) provide to the appropriate congressional committees, either in the next submission required by subsection (a)(1) or before such submission, a written statement explaining the reason for the delay in fulfilling the requirements of subsection (a), (b), or (c), as the case may be.

   Inserted: "(3) Notwithstanding any other provision of law, if the requirements of subsection (a) have not been fulfilled with respect to an international agreement within 45 days of the date on which the Secretary made a request to an office or agency as described in paragraph (1)(B), no amounts appropriated to the Department of State under any law shall be available for obligation or expenditure to implement or to support the implementation of (including through the use of personnel or resources subject to the authority of a chief of mission) that particular international agreement, other than to facilitate compliance with this section, until the Secretary satisfies the substantive requirements in subsection (a) with respect to that particular international agreement.

   Inserted: "(i)(1) Not later than 3 years after the date of the enactment of this section, and not less frequently than once every 3 years thereafter during the 9-year period beginning on the date of the enactment of this section, the Comptroller General of the United States shall conduct an audit of the compliance of the Secretary with the requirements of this section.

   Inserted: "(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--

   Inserted: "(A) the cause and scope of such failure or refusal;

   Inserted: "(B) the specific office or offices responsible for such failure or refusal; and

   Inserted: "(C) recommendations for measures to ensure compliance with statutory requirements.

   Inserted: "(3) The Comptroller General shall submit to the appropriate congressional committees in writing the results of each audit required by paragraph (1).

   Inserted: "(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.

   Inserted: "(j) The President shall, through the Secretary, promulgate such rules and regulations as may be necessary to carry out this section.

   Inserted: "(k) It is the sense of Congress that the executive branch should not prescribe or otherwise commit to or include specific legislative text in a treaty, executive agreement, or non-binding instrument unless Congress has authorized such action.

   Inserted: "(l) In this section:

   Inserted: "(1) The term 'appropriate congressional committees' means--

   Inserted: "(A) the Committee on Foreign Relations of the Senate; and

   Inserted: "(B) the Committee on Foreign Affairs of the House of Representatives.

   Inserted: "(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.

   Inserted: "(3) The term 'Deputy Secretary' means the Deputy Secretary of State.

   Inserted: "(4) The term 'intelligence community' has the meaning given that term in section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)).

   Inserted: "(5) The term 'international agreement' includes--

   Inserted: "(A) any treaty that requires the advice and consent of the Senate, pursuant to article II of the Constitution of the United States; and

   Inserted: "(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.

   Inserted: "(6)(A) The term 'qualifying non-binding instrument' means a non-binding instrument that--

   Inserted: "(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

   Inserted: "(ii)(I) could reasonably be expected to have a significant impact on the foreign policy of the United States; or

   Inserted: "(II) is the subject of a written communication from the Chair or Ranking Member of either of the appropriate congressional committees to the Secretary.

   Inserted: "(B) The term 'qualifying non-binding instrument' does not include any non-binding instrument that is signed or otherwise becomes operative or is implemented pursuant to the authorities relied upon by the Department of Defense, the Armed Forces of the United States, or any element of the intelligence community.

   Inserted: "(7) The term 'Secretary' means the Secretary of State.

   Inserted: "(8)(A) The term 'text' with respect to an international agreement or qualifying non-binding instrument includes--

   Inserted: "(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

   Inserted: "(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.

   Inserted: "(B) Under clauses (i) and (ii) of subparagraph (A), the term 'contemporaneously and in conjunction with' shall be construed liberally and shall not be interpreted to require any action to have occurred simultaneously or on the same day.

   Inserted: "(m) Nothing in this section shall be construed to authorize the withholding from disclosure to the public of any record if such disclosure is required by law.".

   Inserted: (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:

   Inserted: "112b. United states international agreements and non-binding instruments; transparency provisions.".

   Inserted: (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)".

   Inserted: (4) Mechanism for reporting.--Not later than 270 days after the date of the enactment of this Act, the Secretary of State shall establish a mechanism for personnel of the Department of State who become aware or who have reason to believe that the requirements of section 112b of title 1, United States Code, as amended by this subsection, have not been fulfilled with respect to an international agreement or qualifying non-binding instrument (as those terms are defined in that section) to report such instances to the Secretary.

   Inserted: (5) Rules and regulations.--Not later than 180 days after the date of the enactment of this Act, the President shall, through the Secretary of State, promulgate such rules and regulations as may be necessary to carry out section 112b of title 1, United States Code, as amended by this subsection.

   Inserted: (6) Consultation and briefing requirement.--

   Inserted: (A) Consultation.--The Secretary of State shall consult with the appropriate congressional committees on matters related to the implementation of this Act and the amendments made by this Act prior to and after the effective date described in subsection (c).

   Inserted: (B) Briefing.--Not later than 90 days after the date of the enactment of this Act, and once every 90 days thereafter for 1 year, the Secretary of State shall brief the appropriate congressional committees on the status of efforts to implement this Act and the amendments made by this Act.

   Inserted: (C) Definition of appropriate congressional committees.--In this paragraph, the term "appropriate congressional committees" means--

   Inserted: (i) the Committee on Foreign Relations of the Senate; and

   Inserted: (ii) the Committee on Foreign Affairs of the House of Representatives.

   Inserted: (7) Authorization of appropriations.--There is authorized to be appropriated to the Department of State $1,000,000 for each of fiscal years 2023 through 2027 for purposes of implementing the requirements of section 112b of title 1, United States Code, as amended by this subsection.

   Inserted: (b) Section 112a of Title 1.--Section 112a of title 1, United States Code, is amended by striking subsections (b), (c), and (d) and inserting the following:

   Inserted: "(b) Copies of international agreements and qualifying non-binding instruments in the possession of the Department of State but not published, other than the agreements described in subsection (b)(3)(A) of section 112b, shall be made available by the Department of State upon request.".

   Inserted: (c) Effective Date of Amendments.--The amendments made by this Act shall take effect 270 days after the date of the enactment of this Act.

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