HR5672-118

1. Short title This Act may be cited as the Bipartisan Keep America Open Act.

2. Table of contents The table of contents for this Act is as follows:

3. References Except as expressly provided otherwise, any reference to this Act contained in any division of this Act shall be treated as referring only to the provisions of that division.

The following sums are hereby appropriated, out of any money in the Treasury not otherwise appropriated, and out of applicable corporate or other revenues, receipts, and funds, for the several departments, agencies, corporations, and other organizational units of Government for fiscal year 2024, and for other purposes, namely:

101. Such amounts as may be necessary, at a rate for operations as provided in the applicable appropriations Acts for fiscal year 2023 and under the authority and conditions provided in such Acts, for continuing projects or activities (including the costs of direct loans and loan guarantees) that are not otherwise specifically provided for in this Act, that were conducted in fiscal year 2023, and for which appropriations, funds, or other authority were made available in the following appropriations Acts: The Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act, 2023 (division A of Public Law 117–328). The Commerce, Justice, Science, and Related Agencies Appropriations Act, 2023 (division B of Public Law 117–328). The Department of Defense Appropriations Act, 2023 (division C of Public Law 117–328). The Energy and Water Development and Related Agencies Appropriations Act, 2023 (division D of Public Law 117–328). The Financial Services and General Government Appropriations Act, 2023 (division E of Public Law 117–328). The Department of Homeland Security Appropriations Act, 2023 (division F of Public Law 117–328), including title III of division O of Public Law 117–328. The Department of the Interior, Environment, and Related Agencies Appropriations Act, 2023 (division G of Public Law 117–328). The Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 2023 (division H of Public Law 117–328). The Legislative Branch Appropriations Act, 2023 (division I of Public Law 117–328). The Military Construction, Veterans Affairs, and Related Agencies Appropriations Act, 2023 (division J of Public Law 117–328). The Department of State, Foreign Operations, and Related Programs Appropriations Act, 2023 (division K of Public Law 117–328). The Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2023 (division L of Public Law 117–328).

102. No appropriation or funds made available or authority granted pursuant to section 101 for the Department of Defense shall be used for: the new production of items not funded for production in fiscal year 2023 or prior years; the increase in production rates above those sustained with fiscal year 2023 funds; or the initiation, resumption, or continuation of any project, activity, operation, or organization (defined as any project, subproject, activity, budget activity, program element, and subprogram within a program element, and for any investment items defined as a P–1 line item in a budget activity within an appropriation account and an R–1 line item that includes a program element and subprogram element within an appropriation account) for which appropriations, funds, or other authority were not available during fiscal year 2023. No appropriation or funds made available or authority granted pursuant to section 101 for the Department of Defense shall be used to initiate multi-year procurements utilizing advance procurement funding for economic order quantity procurement unless specifically appropriated later.

103. Appropriations made by section 101 shall be available to the extent and in the manner that would be provided by the pertinent appropriations Act.

104. Except as otherwise provided in section 102, no appropriation or funds made available or authority granted pursuant to section 101 shall be used to initiate or resume any project or activity for which appropriations, funds, or other authority were not available during fiscal year 2023.

105. Appropriations made and authority granted pursuant to this Act shall cover all obligations or expenditures incurred for any project or activity during the period for which funds or authority for such project or activity are available under this Act.

106. Unless otherwise provided for in this Act or in the applicable appropriations Act for fiscal year 2024, appropriations and funds made available and authority granted pursuant to this Act shall be available until whichever of the following first occurs: The enactment into law of an appropriation for any project or activity provided for in this Act. The enactment into law of the applicable appropriations Act for fiscal year 2024 without any provision for such project or activity. January 11, 2024.

107. Expenditures made pursuant to this Act shall be charged to the applicable appropriation, fund, or authorization whenever a bill in which such applicable appropriation, fund, or authorization is contained is enacted into law.

108. Appropriations made and funds made available by or authority granted pursuant to this Act may be used without regard to the time limitations for submission and approval of apportionments set forth in section 1513 of title 31, United States Code, but nothing in this Act may be construed to waive any other provision of law governing the apportionment of funds.

109. Notwithstanding any other provision of this Act, except section 106, for those programs that would otherwise have high initial rates of operation or complete distribution of appropriations at the beginning of fiscal year 2024 because of distributions of funding to States, foreign countries, grantees, or others, such high initial rates of operation or complete distribution shall not be made, and no grants shall be awarded for such programs funded by this Act that would impinge on final funding prerogatives.

110. This Act shall be implemented so that only the most limited funding action of that permitted in the Act shall be taken in order to provide for continuation of projects and activities.

111. For entitlements and other mandatory payments whose budget authority was provided in appropriations Acts for fiscal year 2023, and for activities under the Food and Nutrition Act of 2008, activities shall be continued at the rate to maintain program levels under current law, under the authority and conditions provided in the applicable appropriations Act for fiscal year 2023, to be continued through the date specified in section 106(3). Notwithstanding section 106, obligations for mandatory payments due on or about the first day of any month that begins after October 2023 but not later than 30 days after the date specified in section 106(3) may continue to be made, and funds shall be available for such payments.

112. Amounts made available under section 101 for civilian personnel compensation and benefits in each department and agency may be apportioned up to the rate for operations necessary to avoid furloughs within such department or agency, consistent with the applicable appropriations Act for fiscal year 2023, except that such authority provided under this section shall not be used until after the department or agency has taken all necessary actions to reduce or defer non-personnel-related administrative expenses.

113. Funds appropriated by this Act may be obligated and expended notwithstanding section 10 of Public Law 91–672 (22 U.S.C. 2412), section 15 of the State Department Basic Authorities Act of 1956 (22 U.S.C. 2680), section 313 of the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995 (22 U.S.C. 6212), and section 504(a)(1) of the National Security Act of 1947 (50 U.S.C. 3094(a)(1)).

114. Each amount incorporated by reference in this Act that was previously designated by the Congress as an emergency requirement pursuant to section 4001(a)(1) of S. Con. Res. 14 (117th Congress), the concurrent resolution on the budget for fiscal year 2022, and section 1(e) of H. Res. 1151 (117th Congress), as engrossed in the House of Representatives on June 8, 2022, is designated by the Congress as an emergency requirement pursuant to section 251(b)(2)(A) of the Balanced Budget and Emergency Deficit Control Act of 1985. Each amount incorporated by reference in this Act that was previously designated as being for disaster relief pursuant to a concurrent resolution on the budget in the Senate and section 1(f) of H. Res. 1151 (117th Congress), as engrossed in the House of Representatives on June 8, 2022, is designated by the Congress as being for disaster relief pursuant to section 251(b)(2)(D) of such Act. This section shall become effective immediately upon enactment of this Act, and shall remain in effect through the date in section 106(3).

115. Rescissions or cancellations of discretionary budget authority that continue pursuant to section 101 in Treasury Appropriations Fund Symbols (TAFS)— to which other appropriations are not provided by this Act, but for which there is a current applicable TAFS that does receive an appropriation in this Act; or which are no-year TAFS and receive other appropriations in this Act, Rescissions or cancellations described in subsection (a) shall continue in an amount equal to the lesser of— the amount specified for rescission or cancellation in the applicable appropriations Act referenced in section 101 of this Act; or the amount of balances available, as of October 1, 2023, from the funds specified for rescission or cancellation in the applicable appropriations Act referenced in section 101 of this Act. No later than October 11, 2023, the Director of the Office of Management and Budget shall provide to the Committees on Appropriations of the House of Representatives and the Senate a comprehensive list of the rescissions or cancellations that will continue pursuant to section 101: Provided, That the information in such comprehensive list shall be periodically updated to reflect any subsequent changes in the amount of balances available, as of October 1, 2023, from the funds specified for rescission or cancellation in the applicable appropriations Act referenced in section 101, and such updates shall be transmitted to the Committees on Appropriations of the House of Representatives and the Senate upon request.

116. Amounts provided by section 101 shall not be made available to release (including pursuant to parole or release pursuant to section 236(a) of the Immigration and Nationality Act but excluding as expressly authorized pursuant to section 212(d)(5)) an alien described in section 235(b)(1)(A)(i)–(ii), (b)(1)(B), or (b)(2), other than to be removed, including to a country described in section 208(a)(2)(A), or returned to a country as described in section 235(b)(3).

This division may be cited as the Continuing Appropriations Act, 2024.

501. Section 401(a)(1)(A) of the Additional Ukraine Supplemental Appropriations Act, 2022 (Public Law 117–128) is amended by striking September 30, 2023 and inserting September 30, 2024. Amounts provided by this section are designated by the Congress as an emergency requirement pursuant to section 251(b)(2)(A) of the Balanced Budget and Emergency Deficit Control Act of 1985, as amended: Provided, That such amounts shall be available only if the President designates such amount as an emergency requirement pursuant to section 251(b)(2)(A).

504. Notwithstanding any other provision of law, funds made available under the headings Economic Support Fund, Assistance for Europe, Eurasia, and Central Asia, Development Assistance, Transition Initiatives, Complex Crises Fund, and Global Health Programs in this or any other Act making appropriations for the Department of State, foreign operations, and related programs may be made available to support the reintegration of, and provide other assistance for, veterans of the Ukrainian military, including reservists.

505. Funds made available in this Act under the headings Economic Support Fund and Assistance for Europe, Eurasia and Central Asia may be transferred to, and merged with, funds made available in other Acts making appropriations for the Department of State, foreign operations, and related programs under the headings United States International Development Finance Corporation—Corporate Capital Account, United States International Development Finance Corporation—Program Account, Export-Import Bank of the United States—Program Account”, “Department of the Treasury—International Affairs Technical Assistance, and United States Agency for International Development—Funds Appropriated to the President—Operating Expenses to respond to the situation in Ukraine and in countries impacted by the situation in Ukraine. The transfer authority provided by this section is in addition to any other transfer authority provided by law. Upon a determination that all or part of the funds transferred pursuant to this section are not necessary for such purposes, such amounts may be transferred back to such appropriations.

507. Funds appropriated in this Act and prior Acts making appropriations for the Department of State, foreign operations, and related programs may be reprogrammed for assistance for Ukraine without regard to any minimum amounts specifically designated in such Acts.

509. Not later than 60 days after the date of enactment of this Act, the President shall submit to the Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the appropriate congressional committees a strategy to prioritize United States national security interests and respond to Russian aggression in Ukraine and its impact on the region, which shall include an explanation of how United States assistance for Ukraine and affected countries in the region advances the objectives of such strategy: Provided, That such strategy shall include clear goals, benchmarks, timelines, and strategic objectives with respect to funds appropriated by this Act and prior Acts making appropriations for the Department of State, foreign operations, and related programs that are made available for assistance for Ukraine: Provided further, That such strategy shall also include details on the staffing requirements necessary to carry out such strategy. Funds appropriated under this Act shall be made available to support additional staff in Ukraine and neighboring countries to conduct monitoring and oversight of funds and ensure the safety and security of United States personnel. Funds appropriated under this Act and made available for assistance for Ukraine shall only be made available to support the ability of the Government of Ukraine to— defend their sovereignty and withstand the impacts of Russia’s invasion; combat corruption; and promote transparency and democracy. Funds appropriated by this Act under the headings Economic Support Fund, Assistance for Europe, Eurasia and Central Asia, International Narcotics Control and Law Enforcement, and Nonproliferation, Anti-Terrorism, Demining and Related Programs, and made available for project-based assistance for Ukraine may not be obligated for any project or activity that is— not regularly accessible for the purpose of conducting effective oversight in accordance with applicable federal statutes and regulations; and conducted in areas where project and resource disbursement monitoring cannot be performed by United States personnel or by vetted third party monitors unless the Secretary of State, in consultation with the Administrator of the United States Agency for International Development, certifies and reports to the appropriate congressional committees that to do so is in the national security interest of the United States: Provided, That such report shall include a detailed justification for waiving such limitations. At any time during fiscal years 2024 and 2025, no United States contribution from funds appropriated under this Act to the Government of Ukraine may cause the total amount of United States Government contributions from funds appropriated under this Act to the Government of Ukraine to exceed 50 percent of the total amount of non-defense funds contributed to the Government of Ukraine from all sources. The President may waive the limitation of paragraph (1) if the President determines that the limitation included therein threatens the national security interest of the United States. The President shall notify the appropriate congressional committees not less than 5 days before making the determination in paragraph (2) and shall include in the notification— a detailed justification as to why the limitation of paragraph (1) threatens the national security interest of the United States; and an explanation as to why other donors to the Government of Ukraine are unable to match United States assistance. If the President makes the determination described in paragraph (2), the Secretary of State shall submit a report to Speaker of the House of Representatives, the President Pro Tempore of the Senate, and the appropriate congressional committees every 120 days for the duration of such determination detailing steps taken to increase other donor contributions and an update to the justification required by paragraph (3). Not later than 15 days prior to the initial obligation of funds made available for assistance for Ukraine under the headings Economic Support Fund, Assistance for Europe, Eurasia and Central Asia, International Narcotics Control and Law Enforcement, Nonproliferation, Anti-Terrorism, Demining and Related Programs, and Foreign Military Financing Program, the Secretary of State, following consultation with the USAID Administrator, shall certify and report to the appropriate congressional committees that mechanisms for monitoring and oversight of funds are in place and functioning across all programs and activities to ensure accountability of such funds to prevent waste, fraud, abuse, diversion, and corruption, including such mechanisms as— use of third-party monitors; enhanced end-use monitoring; external and independent audits and evaluations; randomized spot checks; and regular reporting on outcomes achieved and progress made toward stated program objectives. The requirements of section 1705 of the Additional Ukraine Supplemental Appropriations Act, 2023 (division M of Public Law 117–328) shall apply to funds appropriated by this Act that are made available for assistance for Ukraine for such purposes. None of the funds appropriated under this Act may be obligated or expended for assistance for Afghanistan, Burma, Central African Republic, Cambodia, Colombia, Cuba, El Salvador, Ethiopia, Haiti, Honduras, Iran, Iraq, Lebanon, Libya, Mexico, Nicaragua, Pakistan, the Russian Federation, Rwanda, Somalia, South Sudan, Sudan, Syria, Tunisia, Venezuela, Yemen, and Zimbabwe except as provided through the regular notification procedures of the Committees on Appropriations. Notifications submitted pursuant to the requirement of paragraph (1) with respect to assistance for Ukraine shall include for each program notified, as applicable— the total amount made available for such program by account and fiscal year; any amount that remains unobligated for such program; any amount that is obligated but unexpended for such program; and any amount committed but not yet notified for such program. Not later than 60 days after the date of enactment of this Act and every 90 days thereafter until all such funds have been expended, the Secretary of State and the USAID Administrator shall provide a comprehensive report to the appropriate congressional committees on assistance for Ukraine since February 24, 2022 that includes total amounts— made available by account and fiscal year; that remain unobligated; that is obligated but unexpended; and that is committed but not yet notified. Not later than 90 days after the date of enactment of this Act and every 90 days thereafter until all such funds have been expended, the Secretary of State, in coordination with the USAID Administrator, shall report to the appropriate congressional committees on the use and planned uses of funds provided for Ukraine, including categories and amounts, the intended results and the results achieved, a summary of other donor contributions, and a description of the efforts undertaken by the Secretary and Administrator to increase other donor contributions: Provided, That such reports shall also include the metrics established to measure such results and determine effectiveness of funds provided and a detailed description of coordination and information sharing with the Offices of the Inspectors General, including a full accounting of any reported allegations of waste, fraud, abuse, and corruption, steps taken to verify such allegations, and steps taken to address all verified allegations.

510. Not later than 180 days after the date of the enactment of this Act, the Inspector General of the Department of Defense shall submit to Congress a report reconciling all United States assistance to Ukraine, including all normal and supplemental Ukraine appropriations and drawdowns, from January 1, 2022, through the date of such submission. The report shall specifically detail the countries, entities, and individuals who received such assistance. The report required under subsection (a) shall also detail the following: All contracts awarded to third parties with enumerated amounts, including an identification of each such third party recipient and a specification of the amount awarded to each such third party. The total of appropriated or authorized amounts that have been obligated or expended, as well as the total amounts of authorized or appropriated funds that have not been so obligated or expended. The report required under subsection (a) shall be submitted in unclassified form but may contain a classified annex.

101. Statutory PAYGO scorecards The budgetary effects of this division and each succeeding division shall not be entered on either PAYGO scorecard maintained pursuant to section 4(d) of the Statutory Pay-As-You-Go Act of 2010.

102. Senate PAYGO scorecards The budgetary effects of this division and each succeeding division shall not be entered on any PAYGO scorecard maintained for purposes of section 4106 of H. Con. Res. 71 (115th Congress).

103. Classification of budgetary effects Notwithstanding Rule 3 of the Budget Scorekeeping Guidelines set forth in the joint explanatory statement of the committee of conference accompanying Conference Report 105–217 and section 250(c)(8) of the Balanced Budget and Emergency Deficit Control Act of 1985, the budgetary effects of this division and each succeeding division shall not be estimated— for purposes of section 251 of such Act; for purposes of an allocation to the Committee on Appropriations pursuant to section 302(a) of the Congressional Budget Act of 1974; and for purposes of paragraph (4)(C) of section 3 of the Statutory Pay-As-You-Go Act of 2010 as being included in an appropriation Act.

101. Temporary expulsion of inadmissible arriving aliens Notwithstanding any other provision of law, during the period beginning on the date of the enactment of this Act and ending on December 31, 2024, an immigration officer who determines that an alien who is arriving in the United States at or along the border between the United States and Mexico is inadmissible under section paragraph (6)(C) or (7) of section 212(a) of the Immigration and Nationality Act (8 U.S.C. 1182(a)), shall, subject to sections 102 and 103, process the alien for expulsion from the United States without further hearing or review. An alien subject to expulsion under subsection (a) shall be detained pending expulsion.

102. Countries to which aliens may be expelled Except as provided in subsection (b), an alien who is processed for expulsion pursuant to section 101(a) shall be expelled to Mexico. If the Government of Mexico is unwilling to accept an alien subject to expulsion under section 101(a) into the territory of Mexico or if the Secretary of Homeland Security determines that expulsion to Mexico would not be in the national interest of the United States, such alien shall be expelled, as directed by the Secretary, to— the country of which such alien is a citizen, subject, or national; the country in which such alien was born; the country in which such alien has a residence; or a country with a government that will accept such alien into its territory if expulsion to each country described in paragraphs (1) through (3) is impracticable, inadvisable, or impossible. Notwithstanding subsections (a) and (b), and except as provided in paragraph (2), the Secretary of Homeland Security may not expel an alien to a country if— the alien’s life or freedom would be threatened in such country because of such alien’s race religion, nationality, membership in a particular social group or political opinion; or there are substantial grounds for believing that such alien would be in danger of being subjected to torture if expelled to such country. Paragraph (1) shall not apply— to an alien who is deportable under section 237(a)(4)(D) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(D)); or if the Secretary of Homeland Security determines that— the alien ordered, incited, assisted, or otherwise participated in the persecution of an individual because of the individual’s race, religion, nationality, membership in a particular social group, or political opinion; the alien, having been convicted by a final judgement of a particularly serious crime, is a danger to the citizens of the United States; there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States before the alien arrived in the United States; or there are reasonable grounds to believe that the alien is a danger to the national security of the United States. For purposes of paragraph (2)(B)(ii), an alien who has been convicted of an aggravated felony or felonies for which the alien has been sentenced to an aggregate term of imprisonment of not less than 5 years shall be considered to have committed a particularly serious crime. Notwithstanding the previous sentence, the Secretary of Homeland Security may determine that an alien sentenced to an aggregate term of imprisonment of less than 5 years has been convicted of a particularly serious crime. For purposes of paragraph (2)(B)(iv), an alien who is described in section 237(a)(4)(B) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(4)(B)) shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the national security of the United States. If an alien expresses to an immigration officer a fear that such alien’s life or freedom would be threatened in the country to which such alien will be expelled or that the alien would be in danger of being subjected to torture in such country, the immigration officer shall refer the alien for an interview by an asylum officer employed in the Refugee, Asylum and International Operations Directorate of U.S. Citizenship and Immigration Services for a determination pursuant to paragraphs (1) and (2). In determining whether an alien has demonstrated that such alien’s life or freedom would be threatened for a reason described in paragraph (1)(A) or whether the alien would be subjected to torture described in subparagraph (1)(B), the asylum officer shall— determine whether the alien has sustained the alien’s burden of proof; and make credibility determinations, in the manner described in clauses (ii) and (iii) of section 208(b)(1)(B) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(1)(B)).

103. Waiver authority The Office of Field Operations Port Director (referred to in this subsection as Director) for each land port of entry situated on the border between the United States and Mexico shall coordinate with the Commissioner of U.S. Customs and Border Protection to determine the maximum number of aliens per day that the Office of Field Operations staff at such port are capable of— safely processing through such port of entry; and placing with nongovernmental organizations to provide short term shelter and services. At the time of a determination under subsection (a), the Director shall develop a strategy to safely and humanely identify eligible individuals in the United States, giving priority to individuals who— have a disability or an acute medical condition; are in need of advanced medical care that cannot be obtained in their current location; or are described in section 102(c)(1). An immigration officer, after approval from the Commissioner of U.S. Customs and Border Protection, may, on a case-by-case basis, except an alien from expulsion based on the totality of the circumstances, including consideration of significant law enforcement officer, public safety, humanitarian, and public health interests. An alien who has been excepted from expulsion under this subsection shall be processed in accordance with the immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17)).

201. Expenditure authority from Airport and Airway Trust Fund Section 9502(d)(1) of the Internal Revenue Code of 1986 is amended— in the matter preceding subparagraph (A) by striking October 1, 2023 and inserting January 12, 2024; and in subparagraph (A) by striking the semicolon at the end and inserting or the Airport and Airway Extension Act of 2023;. Section 9502(e)(2) of such Code is amended by striking October 1, 2023 and inserting January 12, 2024.

202. Extension of taxes funding Airport and Airway Trust Fund Section 4081(d)(2)(B) of the Internal Revenue Code of 1986 is amended by striking September 30, 2023 and inserting January 11, 2024. Section 4261(k)(1)(A)(ii) of such Code is amended by striking September 30, 2023 and inserting January 11, 2024. Section 4271(d)(1)(A)(ii) of such Code is amended by striking September 30, 2023 and inserting January 11, 2024. Section 4043(d) of such Code is amended by striking September 30, 2023 and inserting January 11, 2024. Section 4083(b) of such Code is amended by striking October 1, 2023 and inserting January 12, 2024. Section 4261(j) of such Code is amended by striking September 30, 2023 and inserting January 11, 2024.

301. Protection of certain facilities and assets from unmanned aircraft Section 210G(i) of the Homeland Security Act of 2002 (6 U.S.C. 124n(i)) is amended by striking on the date that is 4 years after the date of enactment of this section and inserting on January 12, 2024.

101. Activities authorized by part A of title IV (other than under section 403(c) or 418) and section 1108(b) of the Social Security Act shall continue through January 11, 2024, in the manner authorized for fiscal year 2023, and out of any money in the Treasury of the United States not otherwise appropriated, there are hereby appropriated such sums as may be necessary for such purpose.