[Federal Register Volume 71, Number 174 (Friday, September 8, 2006)]
[Rules and Regulations]
[Pages 53007-53009]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-14850]


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DEPARTMENT OF STATE

22 CFR Part 181

RIN 1400-AC21
[Public Notice: 5527]


Publication, Coordination, and Reporting of International 
Agreements: Amendments

AGENCY: State Department.

ACTION: Final rule.

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SUMMARY: The Department of State is updating 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 will not be publishing 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.'' Further, the 
regulations are being 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: Effective Date: This rule is effective October 10, 2006.

FOR FURTHER INFORMATION CONTACT: John Kim, Assistant Legal Adviser for 
Treaty Affairs, Office of the Legal Adviser, Department of State, 
Washington, DC 20520, 202-647-1660, or at [email protected].

SUPPLEMENTARY INFORMATION: 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 
Prevention Act of 2004, Public Law 108-458 (Dec. 17, 2004). The State 
Department is amending 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; and (3) four 
additional categories of international agreements that meet the non-
publication criteria of 1 U.S.C. 112a.
    In addition, the Department is amending the procedures regarding 
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.
    A proposed rule on these subjects was published in the Federal 
Register on May 18, 2006 (71 FR 28831), which contains a more detailed 
discussion. Only one comment was received on the proposed regulations. 
The comment supported the proposed amendment to the consultation 
procedures in 22 CFR 181.4(e) with respect to proposed international 
agreements that reasonably may result in a ``significant regulatory 
action.'' The commenter expressed the view that the amendment to the 
regulations would ensure a greater level of transparency in the 
negotiation and conclusion of international agreements that may lead to 
significant regulatory impacts on domestic U.S. entities.
    Further, the comment made two recommendations relating to the 
implementation of the amendment once it was finalized. First, the 
commenter said that agencies should be required to consult with OMB at 
the earliest possible stage in the discussions of a possible 
international agreement. Second, the commenter requested that the State 
Department require agencies to publish a short notice in the Federal 
Register when consultation has been initiated with OMB, asking for 
public comment where appropriate. In the commenter's view, such a 
notice would ensure that the public and other interested agencies are 
made aware of consultations with OMB, thereby fostering the 
transparency of an agency's development of international agreements.
    As there has been no objection to the proposed rule, the State 
Department will promulgate the final rule without change. The 
Department nevertheless has considered the commenter's suggestions. 
With respect to the first suggestion, the Department believes that the 
term ``timely'' is sufficient to indicate the need for agencies to 
consult with OMB at an appropriate stage in the discussions concerning 
proposed international agreements. The

[[Page 53008]]

Department and OMB already have agreed to develop inter-agency 
procedures to best implement the final rule and ensure that OMB has a 
sufficient opportunity to be consulted prior to the authorization of 
the negotiation or conclusion of international agreements under these 
regulations. With respect to the second suggestion in the comment, the 
Department does not provide notices in the Federal Register of proposed 
negotiations of international agreements nor does it believe that such 
notices would be appropriate given the nature of the conduct of foreign 
relations and international negotiations. The time for public notice in 
the Federal Register is the occasion of the agency's rulemaking.
    Finally, no comments were received concerning the other aspects of 
the State Department's proposed rule; therefore, the final rule will be 
published also without any change to those aspects. In particular, no 
comments were received with respect to the Department's determination 
that four additional categories of international agreements meet the 
criteria for non-publication in 1 U.S.C. 112a(b). Also, no comments 
were received with respect to adjustments to certain internal 
procedures within the State Department on the reporting of 
international agreements to Congress.

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.

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.

0
For the reasons set forth above, part 181 is amended as follows:

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

0
1. The authority citation for part 181 continues to read as follows:

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


0
2. Sec.  181.2 is amended by:
0
A. Removing the third and fourth sentences of paragraph (a) (2);
0
B. Adding a new third sentence of paragraph (a) (2); and
0
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)).


0
3. Sec.  181.4 is amended in paragraph (e) as follows:
0
A. By designating the existing text as paragraph (e)(1); and
0
B. Adding a new paragraph (e)(2) to read 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.
* * * * *

[[Page 53009]]

Sec.  181.7  [Amended]

0
4. Sec.  181.7 is amended as follows:
0
A. In paragraph (b): By removing ``Assistant Secretary of State for 
Congressional Relations'' and adding in its place ``Assistant Legal 
Adviser for Treaty Affairs''; and removing ``House Committee on Foreign 
Affairs'' and adding in its place ``House Committee on International 
Relations''.
0
B. In paragraph (c):
0
1. By removing ``, the negotiations, the effect of the agreement,'' in 
the third sentence; and
0
2. By removing, in the last sentence the phrase ``Assistant Secretary 
of State for Congressional Relations'' and adding in its place 
``Assistant Legal Adviser for Treaty Affairs'', and removing the 
phrase``House Committee on Foreign Affairs'' and adding in its place 
``House Committee on International Relations''.
0
C. In paragraph (d), by removing ``Assistant Secretary of State for 
Congressional Relations'' and ``Assistant Secretary for Congressional 
Relations'' wherever each appears and adding in its place ``Assistant 
Legal Adviser for Treaty Affairs''.

0
5. Sec.  181.8 is amended as follows by:
0
A. Adding paragraphs (a)(10) through (13);
0
B. Adding a sentence to the end of paragraph (b); and
0
C. 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; and
    (b) * * * Agreements on the subjects listed in paragraphs (a)(10) 
through (13) of this section that had not been published as of 
September 8, 2006.
* * * * *
    (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 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.''

0
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: August 21, 2006.
John J. Kim,
Assistant Legal Adviser for Treaty Affairs, Department of State.
 [FR Doc. E6-14850 Filed 9-7-06; 8:45 am]
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