Amendment of Section
Pub. L. 117–263, div. E, title LIX, § 5947(a)(1), (c), Dec. 23, 2022, 136 Stat. 3476, 3482, provided that, effective 270 days after Dec. 22, 2022, this section is amended to read as follows:
§ 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.
(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 the website of the Department of State.
(3) The requirements under paragraphs (1) and (2) shall not apply to the following categories of international agreements or qualifying non-binding instruments, or to information described in subparagraphs (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 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.
See 2022 Amendment note below.
