Sec. 3310. Enhancing transparency on international agreements and non-binding instruments
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Section 112b of title 1, United States Code, is amended— in the section heading, by striking and inserting transmission to Congress ; transparency provisions in subsection (a)— by striking The Secretary and all that follows through notice from the President. ; and by striking any international agreement on behalf of the United States shall transmit and all that follows through the period at the end and inserting the following: “any international agreement or qualifying non-binding instrument on behalf of itself or the United States shall— provide to the Secretary the text of each international agreement not later than 30 calendar days after the date on which such agreement is signed; provide to the Secretary the text of each qualifying non-binding instrument not later than 30 calendar days after the date of the written communication described in subsection (m)(3)(A)(ii); and 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). ; by striking subsection (b); by redesignating subsections (a), (c), (d), (f), and
(g)as subsections (d), (g), (j), (k), and (l), respectively; by inserting before subsection (d), as redesignated by paragraph (4), the following: Not less frequently than once each month, the Secretary, through the Legal Adviser of the Department of State, shall provide to the appropriate congressional committees the following: A list of all international agreements and qualifying non-binding instruments approved for negotiation by the Secretary or another Department of State officer at the Assistant Secretary level or higher during the prior month. 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). A list of all international agreements and qualifying non-binding instruments signed, concluded, or otherwise finalized with a foreign party or participant during the prior month. The text of all international agreements and qualifying non-binding instruments described in clause (i). A description of the primary legal authority that, in the view of the Secretary, provides authorization for all international agreements and qualifying non-binding instruments provided under clause
(ii)to become operative. If multiple authorities are relied upon, the Secretary shall cite all such authorities and identify a primary authority. All citations to a treaty or 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 primary authority relied upon is article II of the Constitution of the United States, the Secretary shall explain the basis for that reliance. A list of all international agreements that entered into force and qualifying non-binding instruments that became operative for the United States during the prior month. The text of all international agreements and qualifying non-binding instruments described in clause (i). 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). A statement of whether there were any opportunities for public comment on the international agreement or qualifying non-binding instrument prior to the conclusion of such agreement or instrument. The Secretary may provide any of the information or texts of international agreements and qualifying non-binding instruments required under paragraph
(1)in classified form if providing such information in unclassified form could reasonably be expected to cause damage to the foreign relations or foreign activities of the United States. In the case of a general authorization issued for the negotiation or conclusion of a series of agreements of the same general type, the requirements of this subsection may be satisfied by the provision of— a single notification containing all the information required by this subsection; and a list, to the extent described in such general authorization, of the countries with which such agreements are contemplated. The President may, on a case-by-case basis, waive the requirements of this subsection with respect to a specific international agreement or qualifying non-binding instrument if the President certifies to the appropriate congressional committees that— exercising the waiver authority is vital to the negotiation of a particular international agreement or qualifying non-binding instrument that is itself vital to the national security interests of the United States; and not later than 60 calendar days after the date on which the President exercises the waiver authority, the President or the President's designee will 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. Not later than 60 calendar days after the date on which the President exercises the waiver authority under subparagraph (A), the President or the President's designee 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. The certification required by subparagraph
(A)may be provided in classified form. The President shall not delegate the waiver authority or certification requirements under subparagraph (A). Not less frequently than once each month, the Secretary shall make the text of all international agreements that entered into force and qualifying non-binding instruments that became operative during the prior month, and the information required by subparagraphs (B)(iii) and clauses
(iii)and
(iv)of subsection (a)(1)(C), available to the public on the website of the Department of State. The requirement under paragraph (1)— shall not apply to any information, including the text of an international agreement or qualifying non-binding instrument, that is classified; and shall apply to any information, including the text of an international agreement or qualifying non-binding instrument, that is unclassified, except that the information required by subparagraphs (B)(iii) and clauses
(iii)and
(iv)of subsection (a)(1)(C) shall not be subject to the requirement under paragraph
(1)if the international agreement or qualifying non-binding instrument to which it relates is classified. Not less frequently than once every 3 months, for all non-binding instruments that become operative and in which Department of State personnel or resources, including personnel or resources subject to chief of mission authority, were involved in the negotiation of such instruments, the Secretary shall— make the text of all such unclassified non-binding instruments available to the public on the website of the Department of State; and transmit the text of all such classified non-binding instruments to the appropriate congressional committees. The requirements under subparagraph
(A)shall not apply to a non-binding instrument if the Secretary determines that such instrument is a minor undertaking. The Secretary shall submit any such determination to the appropriate congressional committees not later than 30 calendar days after the date on which such instrument is signed or approved and provide in such submission the name of the instrument and a description of the instrument's scope, substance, and participants. The Secretary may provide such determination in classified form if providing such information in unclassified form could reasonably be expected to cause damage to the foreign relations or foreign activities of the United States. The requirements under subparagraph
(A)shall not apply to any non-binding instruments that become operative pursuant to the authorities provided in title 10 or the authorities provided to the agencies described in section 3(4) of the National Security Act of 1947 ( 50 U.S.C. 3003(4) ). For any international agreement or qualifying non-binding arrangement, not later than 30 calendar 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 copies of any implementing agreements or arrangements, whether binding or non-binding, the Secretary shall submit such implementing agreements or arrangements to the appropriate congressional committees. ; by striking subsection
(e)and inserting the following: 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— be selected from among employees of such department or agency; serve concurrently as the Chief International Agreements Officer; and 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. The Chief International Agreements Officer of the Department of State shall serve in the Office of the Legal Adviser with the title of International Agreements Compliance Officer. Texts of oral international agreements and qualifying non-binding instruments shall be reduced to writing and subject to the requirements of subsection (a). ; in subsection (g), as redesignated by paragraph (4), by striking of State ; by inserting after subsection (g), as so redesignated, the following: Notwithstanding any other provision of law, no amounts appropriated to the Department of State under any law shall be available for obligation or expenditure to conclude or implement or to support the conclusion or implementation of (including through the use of personnel or resources subject to the authority of a chief of mission) a 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. Paragraph
(1)shall take effect on October 1, 2022. Not later than 3 years after the date of the enactment of this Act, and not less frequently than once every 2 years thereafter, the Comptroller General of the United States shall conduct an audit of the compliance of the Secretary with the requirements of this section. 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— the cause and scope of such failure or refusal; the specific office or offices responsible for such failure or refusal; and penalties or other recommendations for measures to ensure compliance with statutory requirements. The Comptroller General shall submit to the appropriate congressional committees the results of each audit required by paragraph (1). 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. ; in subsection (j), as redesignated by paragraph (4)— in paragraph (1)— by striking The Secretary of State shall annually submit to Congress and inserting Not later than February 1 of each year, the Secretary shall submit to the appropriate congressional committees ; and by striking an index of and all that follows through the period at the end and inserting the following: “a list of— all international agreements and qualifying non-binding instruments that were signed or otherwise concluded, entered into force or otherwise became operative, or that were modified or otherwise amended during the preceding calendar year; and for each agreement and instrument included in the list under subparagraph (A)— the dates of any action described in such subparagraph; the title of the agreement or instrument; and a summary of the agreement or instrument (including a description of the duration of activities under the agreement or instrument and a description of the agreement or instrument). ; in paragraph (2), by striking may be submitted in classified form and inserting shall be submitted in unclassified form, but may include a classified annex ; and by adding at the end the following: The Secretary should make the report, except for any classified annex, available to the public on the website of the Department of State. Not later than February 1 of each year, the Secretary shall make available to the public on the website of the Department of State each part of the report involving an international agreement or qualifying non-binding instrument that entered into force or became operative during the preceding calendar year, except for any classified annex or information contained therein. Not less frequently than once every 3 months, the Secretary shall brief the appropriate congressional committees on developments with regard to non-binding instruments that have an important effect on the foreign relations of the United States. ; and in subsection (l), as redesignated by paragraph (4)— by striking or executive agreement and inserting , executive agreement ; and by inserting , or non-binding instrument after agreement ; and by adding after subsection (l), as redesignated by paragraph (4), the following: In this section: The term appropriate congressional committees means— the Committee on Foreign Relations of the Senate; and the Committee on Foreign Affairs of the House of Representatives. The term international agreement includes— treaties that require the advice and consent of the Senate, pursuant to article II of the Constitution of the United States; and other international agreements to which the United States is a party and which are not subject to the advice and consent of the Senate. The term qualifying non-binding instrument means a non-binding instrument that— is signed or otherwise becomes operative with one or more foreign governments, international organizations, or foreign entities, including non-state actors; and is the subject of a written communication from the Chair or Ranking Member of either of the appropriate congressional committees to the Secretary. The term qualifying non-binding instrument does not include any non-binding instrument that is signed or otherwise becomes operative pursuant to the authorities provided in title 10 or the authorities provided to the agencies described in section 3(4) of the National Security Act of 1947 ( 50 U.S.C. 3003(4) ). The term Secretary means the Secretary of State. The term text of the international agreement or qualifying non-binding instrument includes— 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; or any related agreement or non-binding instrument, including implementing agreements and arrangements, whether entered into contemporaneously and in conjunction with the international agreement or qualifying non-binding instrument. Under subparagraph (A)(ii), the term contemporaneously and in conjunction with shall be construed liberally and shall not be interpreted to mean simultaneously or on the same day. . 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; transparency provisions. . 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) . There is authorized to be appropriated to the Department of State $1,000,000 for each of fiscal years 2022 through 2026 for purposes of implementing the requirements of section 112b of title 1, United States Code, as amended by this section. Not later than six months from 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 section 112b of title 1, United States Code, as amended by this section.
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Sec. 3310
Enhancing transparency on international agreements and non-binding instruments
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