E6-7596. Publication, Coordination, and Reporting of International Agreements: Amendments

AGENCY:

State Department.

ACTION:

Proposed rule with request for comments.

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: [e-mail]. 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 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 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.

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:

§ 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:

§ 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.

* * * * *

§ 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:

§ 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 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 § 181.9 to read as follows:

§ 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.