[Federal Register Volume 71, Number 96 (Thursday, May 18, 2006)]
[Proposed Rules]
[Pages 28831-28835]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-7596]


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DEPARTMENT OF STATE

22 CFR Part 181

[Public Notice: 5402]
RIN 1400-AC21


Publication, Coordination, and Reporting of International 
Agreements: Amendments

AGENCY: State Department.

ACTION: Proposed rule with request for comments.

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SUMMARY: The Department of State is proposing to update the regulations 
implementing 1 U.S.C. 112a and 112b in order to reflect amendments to 
the statutes governing publication of U.S. international agreements and 
their transmittal to the Congress. It is further proposing not to 
publish certain categories of international agreements in the 
compilation entitled ``United States Treaties and Other International 
Agreements'' or in the Treaties and Other International Acts series. 
These categories of agreements are of a highly technical or specialized 
nature and are of limited interest to the public. Further, the 
regulations are proposed to be amended to reflect adjustments to 
certain internal procedures within the State Department on the 
reporting of international agreements to Congress. Finally, the 
Department is adding a new requirement concerning procedures for 
consultation with the Secretary of State in the negotiation and 
conclusion of international agreements. Where an international 
agreement could reasonably require for its implementation the issuance 
of a significant domestic regulatory action, agencies proposing the 
agreement are to consult in a timely manner with the Office of 
Management and Budget (OMB), and the Department of State should confirm 
that timely consultations were undertaken.

DATES: Submit comments on or before July 17, 2006.

ADDRESSES: You may submit comments, identified by any of the following 
methods: E-mail: [email protected]. You must include the 
Regulatory Identification Number (RIN) in the subject line of your 
message.
    Mail (paper, disk, or CD-ROM submissions): An original and three 
copies of comments should be sent to the Assistant Legal Adviser for 
Treaty Affairs, Office of the Legal Adviser, Room 5420, Department of 
State, Washington, DC 20520.
    Persons with access to the internet may also view this notice and 
provide comments by going to the regulations.gov Web site at: http://www.regulations.gov/index.cfm. You must include the RIN in the subject 
line of your message.

FOR FURTHER INFORMATION CONTACT: John J. Kim, Assistant Legal Adviser 
for Treaty Affairs, Office of the Legal Adviser, Department of State, 
202-647-1660.

SUPPLEMENTARY INFORMATION:

Background

    Two statutes set forth the Secretary's unique role and important 
responsibilities in the area of publishing, coordinating, and reporting 
international agreements. Pursuant to 1 U.S.C. 112a, the Secretary of 
State is required to publish annually a compilation of all treaties and 
international agreements to which the United States is a party that 
were signed, proclaimed, or ``with reference to which any other final 
formality ha[d] been executed'' during the calendar year. The Secretary 
of State, however, may determine that certain categories of agreements 
should not be published if certain criteria are met. Any such 
determination must be published in the Federal Register.
    Under the second statute, 1 U.S.C. 112b, the Secretary of State is 
required to transmit to the Congress the text of any international 
agreement other than a treaty to which the United States is a party as 
soon as practicable but no later than 60 days after it enters into 
force. Those agreements that the President determines should be 
classified are to be transmitted, not to Congress as a whole, but to 
the House Committee on International Relations (at that time called 
``the House Committee on Foreign Affairs'') and to the Senate Foreign 
Relations Committee under an injunction of secrecy. The statute further 
recognizes the Secretary of State's special role in the negotiation and 
conclusion of all U.S. international agreements, providing that 
``[n]otwithstanding 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 rather than a 
particular agreement.''
    The Department of State has issued regulations to implement these 
statutory provisions. These regulations are codified in Part 181 of 
Chapter 22 of the Code of Federal Regulations (CFR). Congress has 
amended both 1 U.S.C. 112a and 1 U.S.C. 112b several times, most 
recently in section 7121 of the Intelligence Reform and Terrorism

[[Page 28832]]

Prevention Act of 2004, Public Law 108-458 (Dec. 17, 2004). This 
proposed rule amends certain sections of 22 CFR part 181 in order to 
reflect (1) the changes made to 1 U.S.C. 112a and 112b in December 
2004; (2) certain changes made to internal Departmental procedures; (3) 
four additional categories of international agreements that meet the 
non-publication criteria of 1 U.S.C. 112(a).
    In addition, this proposed rule amends the procedures regarding 
consultation with the Secretary of State with respect to the 
negotiation and conclusion of international agreements. These 
procedures are set forth in 22 CFR 181.4 and in the Circular 175 
procedure referenced therein. In particular, if a proposed 
international agreement embodies a commitment that could reasonably be 
expected to require (for its implementation) the issuance of a 
``significant regulatory action'' (as defined in section 3 of Executive 
Order 12866), the agency proposing the agreement shall consult in a 
timely manner with the OMB regarding such commitment. This amendment is 
aimed at ensuring that OMB is apprised of international commitments 
that may have a significant regulatory impact on domestic entities or 
persons prior to the negotiation or conclusion of the international 
agreement containing the commitment.

Discussion

    First, Public Law 108-458 made significant changes to certain legal 
definitions, including a change in the factors to be considered in 
assessing whether an agreement is a reportable international agreement 
under 1 U.S.C. 112a and the Case-Zablocki Act. Subsection (e) of 1 
U.S.C. 112b was amended to provide in relevant part:
    (2)(A) An arrangement shall constitute an international agreement 
within the meaning of this section * * * irrespective of the duration 
of activities under the arrangement or the arrangement itself.
    (B) Arrangements that constitute an international agreement within 
the meaning of this section * * * include the following:
    (i) A bilateral or multilateral counterterrorism agreement.
    (ii) A bilateral agreement with a country that is subject to a 
determination under section 6(j)(1)(A) of the Export Administration Act 
of 1979 (50 U.S.C. App. 2405(j)(1)A), section 620A(a) of the Foreign 
Assistance Act of 1961 (22 U.S.C. 2371(a)), or section 40(d) of the 
Arms Export Control Act (22 U.S.C. 2780(d)).
    We propose to amend the provisions of 22 CFR 181.2 (which describe 
criteria to be applied in determining whether an undertaking, oral 
agreement, document or set of documents constitutes an international 
agreement) to incorporate these statutory amendments.
    Second, this proposed rule amends 22 CFR 181.4(e) to provide an 
additional basis on which agencies must consult with OMB prior to the 
negotiation or conclusion of an international agreement. Currently, 22 
CFR 181.4(e) states that if a proposed international agreement embodies 
a commitment to furnish funds, goods, or services that are beyond or in 
addition to those authorized in an approved budget, the agency 
proposing the agreement shall state what arrangements have been planned 
or carried out concerning consultation with OMB on such a commitment. 
The Department of State makes sure that the relevant budget contains 
funds for the commitment, or that the President has made a 
determination to seek the funds.
    The proposed rule adds a second paragraph to subsection (e) to 
ensure OMB consultation on proposed international agreements that 
reasonably may require, for their implementation, significant domestic 
regulatory action. OMB is responsible for overseeing and coordinating 
the Administration's legislative initiatives and its domestic 
regulatory policy. Commitments contained in international agreements 
may be implemented through domestic regulations. This revision to 
subsection (e) is designed to ensure that OMB is consulted, in a timely 
manner, prior to negotiation or conclusion of an international 
agreement that contains a commitment that reasonably could be expected 
to require, for its implementation, the issuance of a ``significant 
regulatory action'' as defined in section 3 of Executive Order 12866.
    Third, the proposed rule amends 22 CFR 181.7 to reflect that the 
State Department has modified its internal procedures so that the 
Assistant Legal Adviser for Treaty Affairs, instead of the Assistant 
Secretary of State for Congressional Relations, transmits classified 
agreements to the Senate Committee on Foreign Relations and to the 
House Committee on International Relations. Similarly, the Assistant 
Legal Adviser for Treaty Affairs, instead of the Assistant Secretary 
for Congressional Relations, transmits to the Congress any agreements 
between the American Institute in Taiwan (AIT) and the governing 
authorities in Taiwan, or between AIT and an agency in the U.S. 
government. In order to enhance accountability and avoid the 
possibility of classified agreements or agreements involving AIT 
getting lost or misplaced between the two bureaus, the Department 
decided to centralize responsibility for all Case Act reporting in the 
Office of the Legal Adviser.
    Fourth, as provided in section 7121(b) of Public Law 108-458, any 
references in 22 CFR 181.7 to the ``House Committee on Foreign 
Affairs'' have been replaced with the ``House Committee on 
International Relations,'' which is the current name of the committee.
    Fifth, the Department proposes to amend 22 CFR 181.8(a) to add four 
additional categories of documents that it believes no longer should be 
published in ``United States Treaties and Other International 
Agreements''. As set forth in 1 U.S.C. 112a, the Secretary of State is 
authorized to--determine that publication of certain categories of 
agreements is not required if the following criteria are met:
    (1) Such agreements are not treaties which have been brought into 
force for the United States after having received Senate advice and 
consent pursuant to section 2(2) of Article II of the Constitution of 
the United States;
    (2) The public interest in such agreements is insufficient to 
justify their publication, because (A) as of the date of enactment of 
the Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, 
the agreements are no longer in force; (B) the agreements do not create 
private rights or duties, or establish standards intended to govern 
government action in the treatment of private individuals; (C) in view 
of the limited or specialized nature of the public interest in such 
agreements, such interest can adequately be satisfied by an alternative 
means; or (D) the public disclosure of the text of the agreement would, 
in the opinion of the President, be prejudicial to the national 
security of the United States; and
    (3) Copies of such agreements (other than those in paragraph 
(2)(D)), including certified copies where necessary for litigation or 
similar purposes, will be made available by the Department of State 
upon request.
    This statute requires publication in the Federal Register of any 
such determination that publication of certain categories of agreements 
is not required.
    In selecting the following categories of agreements, the Department 
has focused on four areas comprising a large volume of agreements that 
are rather specialized and do not appear to be of general public 
interest. Routine non-publication of the following categories of

[[Page 28833]]

agreements will moderate future publication requirements, thus 
permitting agreements of greater interest to be published in a more 
timely manner. Also, these agreements do not appear to create private 
rights or duties. In any event, copies of these agreements will be 
provided by the Department upon request. For the above-stated reasons, 
the Department proposes not to publish routinely the following:
    United States Agency for International Development (USAID) 
Implementing Agreements. Consistent with the Foreign Assistance Act and 
the Agricultural Trade and Development Act of 1954, USAID negotiates 
agreements with foreign governments under which specific activities and 
programs financed with USAID-administered foreign assistance funding 
are implemented. The Department seeks to exclude all such bilateral 
``implementing'' agreements from the routine publication requirement, 
which is consistent with current practice. There is little, if any, 
public interest in these agreements.
    We note that the Department of State already forgoes the reporting 
of such agreements to Congress (under 1 U.S.C. 112b) when they involve 
grants of $25 million or less. The Department will continue to report 
to Congress those USAID agreements that exceed $25 million.
    Letters of Agreement and Memoranda of Understanding for Bilateral 
Assistance on Counter-Narcotics and Anti-Crime Cooperation. Pursuant to 
the Foreign Assistance Act and the President's constitutional 
authority, the United States negotiates bilateral agreements with other 
countries regarding the control of narcotic drugs and other anti-crime 
purposes. These agreements are of a limited and specialized nature, and 
there has been no indication of public interest in their substance.
    We note that the Department already forgoes the reporting of such 
agreements to Congress when they involve grants of less than $25 
million. The Department will continue to report to Congress those 
letters of agreement and memoranda of understanding for bilateral 
assistance over $25 million.
    Educational and Leadership Development Agreements. The U.S. 
Government enters into a number of agreements that regulate practical 
or technical arrangements for targeted programs or assignments designed 
to acquaint U.S. and foreign armed forces, law enforcement, homeland 
security, or related personnel with limited, specialized aspects of 
each other's practices or operations. These agreements are of a limited 
and specialized nature, and there has been no indication of public 
interest in their substance.
    Bilateral Aviation Technical Assistance Agreements. The United 
States enters into international agreements which provide for 
managerial, operational, and technical assistance to other countries in 
developing and modernizing their civil aviation infrastructure for 
specific aviation projects. These agreements address only identified 
aviation objectives and can sometimes be highly technical in nature. 
There has been no indication of public interest in the publication of 
these agreements.
    The Department of State does not intend to publish agreements in 
the above categories that were signed before publication of this notice 
and not previously published in the compilation entitled ``United 
States Treaties and Other International Agreements.'' Agreements in the 
above categories (except classified agreements) will continue to be 
listed in the Department of State's annual publication entitled 
``Treaties in Force.'' These four additional categories of agreements 
that meet the non-publication criteria will be reflected in four 
additional subparagraphs in 22 CFR 181.8(a).
    Sixth, we propose to add a new paragraph to 22 CFR 181.8 
(``Publication'') to implement a new, additional reporting requirement. 
In Public Law 108-458, Congress amended 1 U.S.C. 112b to add the 
following:
    (d)(1) The Secretary of State shall annually submit to Congress a 
report that contains an index of all international agreements, listed 
by country, date, title, and summary of each such agreement (including 
a description of the duration of activities under the agreement and the 
agreement itself), that the United States--
    (A) Has signed, proclaimed, or with reference to which any other 
final formality has been executed, or that has been extended or 
otherwise modified, during the preceding calendar year; and
    (B) Has not been published, or is not proposed to be published, in 
the compilation entitled ``United States Treaties and Other 
International Agreements''.
    The Department submitted such an index for the past two years and 
has taken steps to continue to meet this reporting requirement.
    Finally, the Department proposes to add a new section 22 CFR 181.9 
that implements an Internet publication requirement. Public Law 108-458 
specifically added subsection (d) to 1 U.S.C. 112a, establishing that 
``[t]he Secretary of State shall make publicly available through the 
Internet Web site of the Department of State each treaty or 
international agreement proposed to be published in the compilation 
entitled `United States Treaties and Other International Agreements' 
not later than 180 days after the date on which the treaty or agreement 
enters into force.'' The Department of State has been meeting this 
requirement by making available through its Internet FOIA webpage 
copies of those agreements reported to Congress under 1 U.S.C. 112b.

Regulatory Analysis

Administrative Procedure Act

    In accordance with provisions of the Administrative Procedure Act 
governing rules promulgated by Federal agencies that affect the public 
(5 U.S.C. 553), the Department is publishing these proposed regulations 
and inviting public comment.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    These proposed changes to the regulations are hereby certified as 
not expected to have a significant impact on a substantial number of 
small entities under the criteria of the Regulatory Flexibility Act, 5 
U.S.C. 601-612, and Executive Order No. 13272, section 3(b).

The Small Business Regulatory Enforcement Fairness Act of 1996

    These proposed regulations do not constitute a major rule, as 
defined by 5 U.S.C. 804, for purposes of congressional review of agency 
rulemaking under the Small Business Regulatory Enforcement Fairness Act 
of 1996, Public Law 104-121. These regulations would not result in an 
annual effect on the economy of $100 million or more; a major increase 
in costs or prices; or adverse effects on competition, employment, 
investment, productivity, innovation, or the ability of United States-
based companies to compete with foreign based companies in domestic and 
export markets.

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), 
Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires 
agencies to prepare a statement before proposing any rule that may 
result in an annual expenditure of $100 million or more by State, 
local, or tribal governments, or by the private sector. These proposed 
regulations would not result in any such expenditure nor would it 
significantly or uniquely affect small governments.

[[Page 28834]]

Executive Orders 12372 and 13132: Federalism

    These regulations would not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Nor would the regulations have federalism 
implications warranting the application of Executive Order No. 12372 
and No. 13132.

Executive Order 12866: Regulatory Review

    Because a portion of this proposed rule directly involves the 
participation of OMB, the Department of State has submitted it to OMB 
for its review.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the regulations in light of sections 
3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

The Paperwork Reduction Act of 1995

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et 
seq.), Federal agencies must obtain approval from OMB for each 
collection of information they conduct, sponsor, or require through 
regulation. The Department of State has determined that this proposal 
contains no new collection of information requirements for the purposes 
of the PRA.

List of Subjects in 22 CFR Part 181

    Treaties.
    For the reasons set forth above, part 181 is proposed to be amended 
as follows:

PART 181--COORDINATION, REPORTING AND PUBLICATION OF INTERNATIONAL 
AGREEMENTS

    1. The authority citation for part 181 will continue to read:

    Authority: 1 U.S.C. 112a, 112b; and 22 U.S.C. 2651a.

    2. 22 CFR 181.2 is amended by:
    A. Adding a new sentence after the second sentence of paragraph (a) 
(2);
    B. Removing the third and fourth sentences of paragraph (a) (2); 
and
    C. Adding new paragraph (f).
    The additions read as follows:


Sec.  181.2  Criteria.

    (a) * * *
    (2) * * * The duration of the activities pursuant to the 
undertaking or the duration of the undertaking itself shall not be a 
factor in determining whether it constitutes an international 
agreement. * * *
* * * * *
    (f) Notwithstanding the other provisions of this section, 
arrangements that constitute international agreements within the 
meaning of this section include
    (1) Bilateral or multilateral counterterrorism agreements and
    (2) Bilateral agreements with a country that is subject to a 
determination under section 6(j)(1)(A) of the Export Administration Act 
of 1979 (50 U.S.C. App. 2405(j)(1)(A)), section 620A(a) of the Foreign 
Assistance Act of 1961 (22 U.S.C. 2371(a)), or section 40(d) of the 
Arms Export Control Act (22 U.S.C. 2780(d)).
    3. 22 CFR 181.4 is amended in paragraph (e) as follows:
    A. By designating the existing text as paragraph (e)(1); and
    B. Adding a new paragraph (e)(2) as follows:


Sec.  181.4  Consultations with the Secretary of State.

* * * * *
    (e) (1) * * *
    (2) If a proposed agreement embodies a commitment that could 
reasonably be expected to require (for its implementation) the issuance 
of a significant regulatory action (as defined in section 3 of 
Executive Order 12866), the agency proposing the arrangement shall 
state what arrangements have been planned or carried out concerning 
timely consultation with the Office of Management and Budget (OMB) for 
such commitment. The Department of State should receive confirmation 
that OMB has been consulted in a timely manner concerning the proposed 
commitment.
* * * * *


Sec.  181.7  [Amended]

    4. 22 CFR 181.7 is amended as follows:
    A. In paragraph (b): By removing ``Assistant Secretary of State for 
Congressional Relations'' wherever it appears and adding ``Assistant 
Legal Adviser for Treaty Affairs'' in its place; and removing ``House 
Committee on Foreign Affairs'' wherever it appears and adding ``House 
Committee on International Relations'' in its place.
    B. In paragraph (c): By removing ``, the negotiations, the effect 
of the agreement,'' in the third sentence; and by removing, in the last 
sentence the phrase ``Assistant Secretary of State for Congressional 
Relations'' and adding ``Assistant Legal Adviser for Treaty Affairs'', 
and removing ``House Committee on Foreign Affairs'' and adding ``House 
Committee on International Relations'' in its place.
    C. In paragraph (d), by removing ``Assistant Secretary of State for 
Congressional Relations'' wherever it appears and adding ``Assistant 
Legal Adviser for Treaty Affairs'' in its place.
    5. 22 CFR 181.8 is amended as follows:
    A. By adding paragraphs (a)(10) through (13);
    B. By adding a sentence to the end of paragraph (b); and
    C. By adding a new paragraph (d) to read as follows:


Sec.  181.8  Publication.

    (a) * * *
    (10) Bilateral agreements with other governments that apply to 
specific activities and programs financed with foreign assistance funds 
administered by the United States Agency for International Development 
pursuant to the Foreign Assistance Act, as amended, and the 
Agricultural Trade Development and Assistance Act of 1954, as amended;
    (11) Letters of agreements and memoranda of understanding with 
other governments that apply to bilateral assistance for counter-
narcotics and other anti-crime purposes furnished pursuant to the 
Foreign Assistance Act, as amended;
    (12) Bilateral agreements that apply to specified education and 
leadership development programs designed to acquaint U.S. and foreign 
armed forces, law enforcement, homeland security, or related personnel 
with limited, specialized aspects of each other's practices or 
operations; and
    (13) Bilateral agreements between aviation agencies governing 
specified aviation technical assistance projects for the provision of 
managerial, operational, and technical assistance in developing and 
modernizing the civil aviation infrastructure;
    (b) * * * Agreements on the subjects listed in paragraphs (a)(10) 
through (13) of this section that had not been published as of [date of 
publication of final rule in Federal Register].
* * * * *
    (d) The Assistant Legal Adviser for Treaty Affairs shall annually 
submit to Congress a report that contains an index of all international 
agreements, listed by country, date, title, and summary of each such 
agreement (including a description of the duration of activities under 
the agreement and the agreement itself), that the United States:
    (1) Has signed, proclaimed, or with reference to which any other 
final formality has been executed, or that has

[[Page 28835]]

been extended or otherwise modified, during the preceding calendar 
year; and
    (2) Has not been published, or is not proposed to be published, in 
the compilation entitled ``United States Treaties and Other 
International Agreements.''
    6. Add new Sec.  181.9 to read as follows:


Sec.  181.9  Internet Web site publication.

    The Office of the Assistant Legal Adviser for Treaty Affairs, with 
the cooperation of other bureaus in the Department, shall be 
responsible for making publicly available on the Internet Web site of 
the Department of State each treaty or international agreement proposed 
to be published in the compilation entitled ``United States Treaties 
and Other International Agreements'' not later than 180 days after the 
date on which the treaty or agreement enters into force.

    Dated: May 11, 2006.
John J. Kim,
Assistant Legal Adviser for Treaty Affairs, Department of State.
 [FR Doc. E6-7596 Filed 5-17-06; 8:45 am]
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