§ 181.6 - Consultations with the Secretary of State.

§ 181.6 Consultations with the Secretary of State.

(a) The Secretary of State is responsible, on behalf of the President, for ensuring that all proposed international agreements of the United States are fully consistent with United States foreign policy objectives. In accordance with 1 U.S.C. 112b(g), no agency of the U.S. Government may sign or otherwise conclude an international agreement, whether entered into in the name of the U.S. Government or in the name of the agency, without prior consultation with the Secretary of State or the Secretary's designee. At an early stage in the development and negotiation of non-binding instruments, agencies should also consult as appropriate with the Department of State to facilitate identification at an early stage of instruments that may constitute qualifying non-binding instruments for the purposes of the Act, and to ensure that the intended non-binding character of such instruments is appropriately reflected in their drafting. . .

(b) Consultation with the Secretary of State (or the Secretary's designee) regarding proposed international agreements, including to obtain authority to negotiate or conclude an international agreement, shall be done pursuant to Department of State procedures set out in Volume 11, Foreign Affairs Manual, Chapter 700 (Circular 175 procedure). Officers of the Department of State shall be responsible for the preparation of all documents required by the Circular 175 procedure.

(c) Any agency wishing to commence negotiations for a proposed international agreement or to conclude an international agreement shall transmit to the interested bureau or office in the Department of State, or to the Office of the Legal Adviser, for consultation pursuant to this section, the following:

(1) A draft text of the proposed agreement or a detailed summary of the proposed agreement if the text is not available (where authority to negotiate a proposed agreement is sought) or the text of the agreement proposed to be concluded (where authority to conclude an agreement is sought).

(2) A detailed description of the Constitutional, statutory, or treaty authority proposed to be relied upon to negotiate or to conclude the agreement. If multiple authorities are relied upon, all such authorities shall be cited. 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 basis for that reliance shall be explained.

(3) Other relevant background information, including:

(i) If a proposed 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 the Office of Management and Budget for such commitment. The Department of State should receive confirmation that the relevant budget approved by the President provides or requests funds adequate to fulfill the proposed commitment, or that the President has made a determination to seek the required funds.

(ii) 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 agreement 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.

(iii) If a proposed agreement contains fiscal contingencies that could give rise to material future financial losses or other costs for the United States (or an agency thereof), the agency proposing the agreement shall identify the contingency and indicate what arrangements have been planned for monitoring the contingency and for meeting any expenses that may arise from it.

(d) The Department of State will endeavor to complete the consultation process in respect of a proposed international agreement in most cases within 30 days of receipt of a request for consultation pursuant to this section and of the information specified in paragraph (c) of this section. The negotiation or conclusion (as the case may be) of a proposed international agreement may not be undertaken prior to the completion of the consultation process.

(e) Consultation may encompass a specific class of agreements rather than a particular agreement where a series of agreements of the same general type is contemplated; that is, where a number of agreements are to be negotiated according to a more or less standard formula, such as, for example, Public Law 480 Agricultural Commodities Agreements. Any agency wishing to conclude a particular agreement within a specific class of agreements about which consultations have previously been held pursuant to this section shall transmit a draft text of the proposed agreement to the Office of the Legal Adviser as early as possible but in no event later than 20 days prior to the anticipated date for concluding the agreement.

(f) The consultation requirement shall be deemed to be satisfied with respect to proposed international agreements of the United States about which the Secretary of State (or the Secretary's designee) has been consulted in the Secretary's capacity as a member of an interagency committee or council established for the purpose of approving such proposed agreements. Such consultation should encompass both policy and legal issues associated with the proposed agreement. Designees of the Secretary of State serving on any such interagency committee or council are to provide as soon as possible to the interested offices or bureaus of the Department of State and to the Office of the Legal Adviser copies of draft texts or summaries of such proposed agreements and other background information as requested.

(g) Before an international agreement containing a foreign language text may be signed or otherwise concluded, a signed memorandum must be obtained from a responsible language officer of the Department of State or of the U.S. Government agency concerned certifying that the foreign language text and the English language text are in conformity with each other and that both texts have the same meaning in all substantive respects. The signed memorandum is to be made available to the Department of State upon request.