[Federal Register Volume 88, Number 189 (Monday, October 2, 2023)]
[Rules and Regulations]
[Pages 67643-67651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-21666]


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DEPARTMENT OF STATE

22 CFR Part 181

[Public Notice: 12151]
RIN 1400-AF63


Publication, Coordination, and Reporting of International 
Agreements: Amendments

AGENCY: Department of State.

ACTION: Final rule; request for comment.

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SUMMARY: The Department of State (``Department'') finalizes regulations 
regarding the publication, coordination, and reporting of international 
agreements. Section 5947 of the James M. Inhofe National Defense 
Authorization Act for Fiscal Year 2023 made changes regarding the 
reporting to Congress and publication of the texts of international 
agreements and related information. The amendments include changes to 
the scope and deadlines associated with requirements to report 
international agreements and related information to Congress, and to 
publish the texts of international agreements in the Treaties and Other 
International Acts Series (TIAS). These amendments are intended to 
reflect and to implement the recently enacted changes to the reporting 
process.

DATES: 
    Effective date: This rule is effective on October 2, 2023.
    Comments due date: The Department of State will consider comments 
submitted until November 1, 2023.

ADDRESSES: Interested parties may submit comments to the Department by 
any of the following methods:
    <bullet> Internet (preferred): At www.regulations.gov, you can 
search for the document using Docket Number DOS-2023-0024 or RIN 1400-
AF63.
    <bullet> Email: Michael Mattler, Office of the Legal Adviser, U.S. 
Department of State, <a href="/cdn-cgi/l/email-protection#9de9eff8fce9e4f2fbfbf4fef8ddeee9fce9f8b3faf2eb"><span class="__cf_email__" data-cfemail="e19593848095988e8787888284a19295809584cf868e97">[email protected]</span></a>.
    <bullet> All comments should include the commenter's name, the 
organization the commenter represents, if applicable, and the 
commenter's address. If the Department is unable to read your comment 
for any reason, and cannot contact you for clarification, the 
Department may not be able to consider your comment. After the 
conclusion of the comment period, the Department will publish a final 
rule (in which it will address relevant comments) as expeditiously as 
possible.

FOR FURTHER INFORMATION CONTACT: Michael Mattler, Assistant Legal 
Adviser for Treaty Affairs, Office of the Legal Adviser, Department of 
State, Washington, DC 20520, (202) 647-1345, or at 
<a href="/cdn-cgi/l/email-protection#e692948387929f8980808f8583a69592879283c8818990"><span class="__cf_email__" data-cfemail="611513040015180e07070802042112150015044f060e17">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: The Department of State is implementing 
amendments to 22 CFR part 181 to reflect the enactment of Section 5947 
of the National Defense Authorization Act for Fiscal Year (FY) 2023 
(Pub. L. 117-263) (``the NDAA''). Section 5947 amends 1 U.S.C. 112a and 
1 U.S.C. 112b, known as the Case-Zablocki Act, regarding the 
publication, coordination, and reporting to Congress of international 
agreements.
    Section 5947 expands the application of the Case-Zablocki Act's 
reporting and publication requirements to include ``qualifying non-
binding'' instruments as defined in the statute. To implement these 
changes, the rule adds two new sections to 22 CFR part 181: one 
establishing criteria that will apply to the identification of 
qualifying non-binding instruments (Section 181.4) and one regarding 
the process the Department of State will follow for assessing whether 
particular non-binding instruments constitute ``qualifying non-binding 
instruments'' within the meaning of the statute (Section 181.5). These 
sections follow the form and structure of existing Sections 181.2 and 
181.3 which establish comparable criteria and procedures regarding the 
identification of international agreements.
    In accordance with 1 U.S.C. 112b(k)(5), among the elements for 
determining whether a non-binding instrument is a ``qualifying non-
binding instrument'' for the purposes of the statute is whether the 
instrument ``could reasonably be expected to have a significant impact 
on the foreign policy of the United States.'' Amended 22 CFR 
181.3(b)(3) establishes factors for consideration when assessing the 
significance of a non-binding instrument on the foreign policy of the 
United States. These factors reflect considerations cited by the 
Congressional sponsors of section 5947 in connection with Congress's 
consideration of the legislation. These factors include whether, and to 
what extent, the instrument is of importance to the United States' 
relationship with another country, such as by addressing a significant 
new policy or initiative (rather than ongoing activities or 
cooperation); affects the rights or responsibilities of U.S. citizens, 
U.S. nationals, or individuals in the United States; impacts State 
laws; has budgetary or appropriations impact; requires changes to U.S. 
law to satisfy commitments made therein; presents a new commitment or 
risk for the entire Nation; and is of Congressional or public interest.
    The procedures set out in 22 CFR 181.4(b) for assessing whether 
particular non-binding instruments could reasonably be expected to have 
a significant impact on the foreign policy of the United States provide 
for such assessments to be made in the first instance by the State 
Department bureau for instruments negotiated by the Department of State 
or the U.S. Government agency responsible for negotiating the 
instrument. On a monthly basis a list of instruments identified by 
State Department bureaus and U.S. Government agencies as reasonably 
expected to have a significant impact on the foreign policy of the 
United States will be submitted to the Under Secretary of State for 
Political Affairs for approval for transmittal to the Congress in 
accordance with the Case-Zablocki Act.
    Amendments to 22 CFR 181.6 update the procedures by which U.S. 
Government agencies consult with the Secretary of State regarding 
international agreements proposed for negotiation or conclusion to 
reflect developments in practice and technical clarifications since 22 
CFR 181.6 was last updated. Amendments to this section also reflect 
recommendations from the Government Accountability Office designed to 
facilitate the identification and monitoring of international 
agreements containing fiscal contingencies that could give rise to 
future financial losses or other costs for the United States or U.S. 
Government agencies in amounts that could be material for the purposes 
of reporting on annual financial statements.
    Amendments to 22 CFR 181.7 consolidate in a single section guidance 
previously contained in other sections of the regulations regarding 
transmittal by U.S. Government agencies to the Department of State of 
international agreements and related material. They also include new 
guidance on the transmittal of qualifying non-binding instruments and 
related material to reflect new requirements contained in section 5947 
of NDAA 2023, as well as

[[Page 67644]]

updated deadlines for the transmittal of materials reflected in that 
section.
    Amendments to 22 CFR 181.8 implement changes made by Section 5947 
in the categories of information required to be transmitted to the 
Congress related to international agreements and qualifying non-binding 
instruments. The new provisions are drawn from the text of the relevant 
statutory requirements.
    Amendments to 22 CFR 181.9 implement changes made by section 5947 
of NDAA 2023 regarding requirements for the publication of 
international agreements. They reflect new requirements to publish the 
texts of qualifying non-binding instruments as well as information 
regarding legal authorities relied upon to enter into international 
agreements and qualifying non-binding instruments, and any new 
legislative or regulatory authorities needed to implement such 
agreements and instruments. Amendments to this section also reflect 
changes made by section 5947 to categories of international agreements 
that are exempt from requirements to be published and to deadlines for 
publication. The amended language in this section is drawn from the 
text of section 5947.

Regulatory Analysis

Administrative Procedures Act

    The Department is issuing this rule as a final rule, asserting the 
``good cause'' exemption to the Administrative Procedure Act (5 U.S.C. 
553(b)). The Department finds that public comment would be impractical 
prior to the effective date of this rulemaking, given the short 
deadline provided by Congress to implement this rule, and the imminent 
effective date of the statute itself. See Sepulveda v. Block, 782 F.2d 
363 (2d Cir. 1986). Section 5947(a)(5) requires ``the President, 
through the Secretary of State [to] promulgate such rules and 
regulations as may be necessary'' to implement the changes to 1 U.S.C. 
112b, not later than 180 days after the date of statute's enactment. 
Section 5947(c) provided that the amendments ``shall take effect on the 
date that is 270 days after the date of the enactment of this Act.'' 
The NDAA was signed by the President on December 23, 2022, resulting in 
a deadline for the finalization of the required rules of June 21, 2023, 
and the statute itself became effective on September 19, 2023. However, 
the Department will consider relevant public comments submitted up to 
30 days after publication.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    This rulemaking is 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 et seq.

Congressional Review Act

    This rulemaking does not constitute a major rule, as defined by 5 
U.S.C. 804, for purposes of congressional review of agency rulemaking.

The Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995, 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. This rule will 
not result in any such expenditure nor would it significantly or 
uniquely affect small governments.

Executive Orders 12372 and 13132: Federalism and Executive Order 13175, 
Impact on Tribes

    This rule will 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 national government. Nor will the regulations have federalism 
implications warranting the application of Executive Orders 12372 and 
13132. This rule will not have tribal implications, will not impose 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Executive Orders 12866 and 14094; 13563: Regulatory Review

    This rule has been drafted in accordance with the principles of 
Executive Order 12866, as amended by Executive Order 14094, and 13563. 
The rulemaking is mandated by a Congressional statute; therefore, 
Congress determined that the benefits of this rulemaking outweigh the 
costs. This rule has been determined to be a significant rulemaking 
under section 3 of Executive Order 12866, but not economically 
significant.

Executive Order 12988: Civil Justice Reform

    This rule has been reviewed in light of sections 3(a) and 3(b)(2) 
of Executive Order 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 (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. This 
rule contains no new collection of information requirements.

List of Subjects in 22 CFR Part 181

    Treaties.


0
For the reasons set forth above, the State Department revises 22 CFR 
part 181 to read as follows:

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

Sec.
181.1 Purpose and application.
181.2 Criteria with respect to international agreements.
181.3 Determinations with respect to international agreements.
181.4 Criteria with respect to qualifying non-binding instruments.
181.5 Determinations with respect to qualifying non-binding 
instruments.
181.6 Consultations with the Secretary of State.
181.7 Fifteen-day rule for transmittal of concluded international 
agreements and qualifying non-binding instruments to the Department 
of State.
181.8 Transmittal to the Congress.
181.9 Publication of international agreements and qualifying non-
binding instruments.
181.10 Definition of ``text''

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


Sec.  181.1  Purpose and application.

    (a) The purpose of this part is to implement the provisions of 1 
U.S.C. 112b, popularly known as the Case-Zablocki Act (hereinafter 
``the Act''), on the reporting to Congress and publication of 
international agreements and qualifying non-binding instruments and 
related coordination with the Secretary of State. This part applies to 
all agencies of the U.S. Government whose responsibilities include the 
negotiation and conclusion of international agreements and qualifying 
non-binding instruments. This part does not, however, constitute a 
delegation by the Secretary of State of the authority to engage in such 
activities. Further, it does not affect any additional requirements of 
law governing the relationship between particular agencies and the 
Secretary of State in connection with international negotiations and 
agreements, or any other requirements

[[Page 67645]]

of law concerning the relationship between particular agencies and the 
Congress. The term ``agency'' as used in this part means each authority 
of the United States Government, whether or not it is within or subject 
to review by another agency.
    (b) Pursuant to the key legal requirements of the Act--full and 
timely disclosure to the Congress of all concluded international 
agreements and qualifying non-binding instruments, publication of 
international agreements and qualifying non-binding instruments, and 
consultation by agencies with the Secretary of State with respect to 
proposed international agreements--every agency of the U.S. Government 
is required to comply with each of the provisions set out in this part 
in implementation of the Act. Nevertheless, this part is intended as a 
framework of measures and procedures which, it is recognized, cannot 
anticipate all circumstances or situations that may arise. Deviation or 
derogation from the provisions of this part will not affect the legal 
validity, under United States law or under international law, of 
international agreements concluded, will not give rise to a cause of 
action, and will not affect any public or private rights established by 
such agreements, Similarly, any such deviation will not affect the 
status or effectiveness of any non-binding instrument.
    (c) To facilitate coordination with the Department of State in the 
implementation of the Act, agencies whose responsibilities include the 
negotiation and conclusion of international agreements or qualifying 
non-binding instruments shall notify the Department of State of the 
official designated as the agency's Chief International Agreements 
Officer in accordance with 1 U.S.C. 112b(e) promptly upon that 
official's designation, and shall promptly inform the Department of any 
changes in the official designated.
    (d) For the Department of State, the Deputy Legal Adviser with 
supervisory responsibility over the Office of Treaty Affairs will be 
designated as the Department's Chief International Agreements Officer 
in accordance with 1 U.S.C. 112b(e), and will have the title of 
International Agreements Compliance Officer.


Sec.  181.2  Criteria with respect to international agreements.

    (a) General. The following criteria are to be applied in deciding 
whether any undertaking, oral agreement, document, or set of documents, 
including an exchange of notes or of correspondence, constitutes an 
international agreement within the meaning of the Act. Each of the 
criteria except those in paragraph (a)(5) of this section must be met 
in order for any given undertaking of the United States to constitute 
an international agreement within the meaning of the Act.
    (1) Identity and intention of the parties. A party to an 
international agreement must be a state, a state agency, or an 
intergovernmental organization. The parties must intend their 
undertaking to be legally binding, and not merely of political or 
personal effect. Documents intended to have political or moral weight, 
but not intended to be legally binding, are not international 
agreements. An example of the latter is the Final Act of the Helsinki 
Conference on Cooperation and Security in Europe. In addition, the 
parties must intend their undertaking to be governed by international 
law, although this intent need not be manifested by a third-party 
dispute settlement mechanism or any express reference to international 
law. In the absence of any provision in the arrangement with respect to 
governing law, it will be presumed to be governed by international law. 
This presumption may be overcome by clear evidence, in the negotiating 
history of the arrangement or otherwise, that the parties intended the 
arrangement to be governed by another legal system. Arrangements 
governed solely by the law of the United States, or one of the states 
or jurisdictions thereof, or by the law of any foreign state, are not 
international agreements for these purposes. For example, a foreign 
military sales loan agreement governed in its entirety by U.S. law is 
not an international agreement.
    (2) Significance of the arrangement. Minor or trivial undertakings, 
even if couched in legal language and form, are not considered 
international agreements within the meaning of the Act. In deciding 
what level of significance must be reached before a particular 
arrangement becomes an international agreement, the entire context of 
the transaction and the expectations and intent of the parties must be 
taken into account. 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. It remains a matter of judgment based on all of the 
circumstances of the transaction. Determinations are made pursuant to 
Sec.  181.3. Examples of arrangements that may constitute international 
agreements are agreements that:
    (i) Are of political significance;
    (ii) Involve substantial grants of funds or loans by the United 
States or credits payable to the United States;
    (iii) Constitute a substantial commitment of funds that extends 
beyond a fiscal year or would be a basis for requesting new 
appropriations;
    (iv) Involve continuing and/or substantial cooperation in the 
conduct of a particular program or activity, such as scientific, 
technical, or other cooperation, including the exchange or receipt of 
information and its treatment, or the pooling of data. However, 
individual research grants and contracts do not ordinarily constitute 
international agreements.
    (3) Specificity, including objective criteria for determining 
enforceability. International agreements require precision and 
specificity in the language setting forth the undertakings of the 
parties. Undertakings couched in vague or very general terms containing 
no objective criteria for determining enforceability or performance are 
not normally international agreements. Most frequently such terms 
reflect an intent not to be bound. For example, a promise to ``help 
develop a more viable world economic system'' lacks the specificity 
essential to constitute a legally binding international agreement. 
However, the intent of the parties is the key factor. Undertakings as 
general as those of, for example, Articles 55 and 56 of the United 
Nations Charter have been held to create internationally binding 
obligations intended as such by the parties.
    (4) Necessity for two or more parties. While unilateral commitments 
on occasion may be legally binding, they do not constitute 
international agreements. For example, a statement by the President 
promising to send money to Country Y to assist earthquake victims would 
not be an international agreement. It might be an important 
undertaking, but not all undertakings in international relations are in 
the form of international agreements. Care should be taken to examine 
whether a particular undertaking is truly unilateral in nature, or is 
part of a larger bilateral or multilateral set of undertakings. 
Moreover, ``consideration,'' as that term is used in domestic contract 
law, is not required for international agreements.
    (5) Form. Form as such is not normally an important factor, but it 
does deserve consideration. Documents which do not follow the customary 
form for international agreements, as to matters such as style, final 
clauses, signatures, or entry into force dates, may or may not be 
international agreements. Failure to use the customary form may

[[Page 67646]]

constitute evidence of a lack of intent to be legally bound by the 
arrangement. If, however, the general content and context reveal an 
intention to enter into a legally binding relationship, a departure 
from customary form will not preclude the arrangement from being an 
international agreement. Moreover, the title of the agreement will not 
be determinative. Decisions will be made on the basis of the substance 
of the arrangement, rather than on its denomination as an international 
agreement, a memorandum of understanding, exchange of notes, exchange 
of letters, technical arrangement, protocol, note verbale, aide-
memoire, agreed minute, or any other name.
    (b) Agency-level agreements. Agency-level agreements are 
international agreements within the meaning of the Act if they satisfy 
the criteria discussed in paragraph (a) of this section. The fact that 
an agreement is concluded by and on behalf of a particular agency of 
the United States Government, rather than the United States Government, 
does not mean that the agreement is not an international agreement. 
Determinations are made on the basis of the substance of the agency-
level agreement in question.
    (c) Implementing agreements. (1) An implementing agreement, if it 
satisfies the criteria discussed in paragraph (a) of this section, may 
itself be an international agreement within the meaning of the Act, 
depending upon how precisely it is anticipated and identified in the 
underlying agreement it is designed to implement. If the terms of the 
implementing agreement are closely anticipated and identified in the 
underlying agreement, only the underlying agreement is considered an 
international agreement. For example, the underlying agreement might 
call for the sale by the United States of 1,000 tractors, and a 
subsequent implementing agreement might require a first installment on 
this obligation by the sale of 100 tractors of the brand X variety. In 
that case, the implementing agreement is sufficiently identified in the 
underlying agreement, and would not itself be considered an 
international agreement within the meaning of the Act. Project annexes 
and other documents which provide technical content for an umbrella 
agreement are not normally treated as international agreements. 
However, if the underlying agreement is general in nature, and the 
implementing agreement meets the specified criteria of paragraph (a) of 
this section, the implementing agreement itself might well be an 
international agreement within the meaning of the Act. For example, if 
the underlying agreement calls for the conclusion of ``agreements for 
agricultural assistance,'' but without further specificity, then a 
particular agricultural assistance agreement subsequently concluded in 
``implementation'' of that obligation, provided it meets the criteria 
discussed in paragraph (a) of this section, would constitute an 
international agreement independent of the underlying agreement.
    (2) Although the considerations discussed in this paragraph 
generally are to be applied to determine whether an implementing 
agreement is itself an international agreement within the meaning of 
the Act, the Act specifies some circumstances in which an implementing 
agreement may be subject to the requirements of the Act for reasons 
independent of the considerations in this paragraph. For example, the 
Act defines the ``text'' of an international agreement to include ``any 
implementing agreement or arrangement . . . that is entered into 
contemporaneously and in conjunction with the international 
agreement,'' and further provides, subject to some exceptions, that the 
Secretary shall submit to specified members of Congress the text of 
implementing agreements not otherwise covered by the Act not later than 
30 days after receipt of a request from the Chair or Ranking Member of 
the Senate Foreign Relations Committee or the House Foreign Affairs 
Committee for the text of such implementing agreements.
    (d) Extensions and modifications of agreements. If an undertaking 
constitutes an international agreement within the meaning of the Act, 
then a subsequent extension or modification of such an agreement would 
itself constitute an international agreement within the meaning of the 
Act.
    (e) Oral agreements. Any oral arrangement that meets the criteria 
discussed in paragraphs (a)(1) through (4) of this section is an 
international agreement and, pursuant to section (f) of the Act, must 
be reduced to writing by the agency that concluded the oral 
arrangement. In such written form, the arrangement is subject to all 
the requirements of the Act and of this part. Whenever a question 
arises whether an oral arrangement constitutes an international 
agreement, the arrangement shall be reduced to writing and the decision 
made in accordance with Sec.  181.3.


Sec.  181.3  Determinations with respect to international agreements.

    (a) Whether any undertaking, document, or set of documents 
constitutes or would constitute an international agreement within the 
meaning of the Act shall be determined by the Legal Adviser of the 
Department of State, a Deputy Legal Adviser, or in most cases the 
Assistant Legal Adviser for Treaty Affairs. Such determinations shall 
be made either on a case-by-case basis, or on periodic consultation, as 
appropriate.
    (b) Agencies whose responsibilities include the negotiation and 
conclusion of international agreements are responsible for transmitting 
to the Assistant Legal Adviser for Treaty Affairs, for decision 
pursuant to paragraph (a) of this section, the text, as defined in 
Sec.  181.10, of any document or set of documents that might constitute 
an international agreement. The transmittal shall be made prior to or 
simultaneously with the request for consultations with the Secretary of 
State required by subsection (g) of the Act and Sec.  181.6.
    (c) Agencies to which paragraph (b) of this section applies shall 
consult periodically with the Assistant Legal Adviser for Treaty 
Affairs in order to determine which categories of arrangements for 
which they are responsible are likely to be international agreements 
within the meaning of the Act.


Sec.  181.4  Criteria with respect to qualifying non-binding 
instruments.

    (a) General. Pursuant to 1 U.S.C. 112b(k)(5), a qualifying non-
binding instrument is a non-binding instrument that:
    (1) Is or will be under negotiation, is signed or otherwise becomes 
operative, or is implemented with one or more foreign governments, 
international organizations, or foreign entities, including non-state 
actors; and
    (2)(i) Could reasonably be expected to have a significant impact on 
the foreign policy of the United States; or
    (ii) Is the subject of a written communication from the Chair or 
Ranking Member of the Committee on Foreign Relations of the Senate or 
the Committee on Foreign Affairs of the House of Representatives to the 
Secretary.
    (3) Consistent with 1 U.S.C. 112b(k)(5)(B), any non-binding 
instrument that is signed or otherwise becomes operative or is 
implemented pursuant to the authorities relied upon by the Department 
of Defense, the Armed Forces of the United States, or any element of 
the intelligence community does not constitute a qualifying non-binding 
instrument.
    (4) As outlined in further detail in this part, requirements under 
1 U.S.C. 112b

[[Page 67647]]

regarding the transmittal to Congress and publication of qualifying 
non-binding instruments and related information apply only to 
qualifying non-binding instruments that have been signed, concluded, or 
otherwise finalized, and do not apply to instruments under negotiation 
prior to being signed, concluded, or otherwise finalized.
    (b) Significant foreign policy impact non-binding instruments. The 
criteria set out in the following paragraphs are to be applied in 
deciding whether any undertaking, document, or set of documents, 
including an exchange of notes or of correspondence, constitutes a non-
binding instrument that could reasonably be expected to have a 
significant impact on the foreign policy of the United States within 
the meaning of section 112b(k)(5)(A)(ii)(I) of the Act.
    (1) Legal character. Non-binding instruments are intended to have 
political or moral weight, rather than legal force. An instrument is 
not a non-binding instrument if it gives rise to legal rights or 
obligations under either international law or domestic law.
    (2) Participants. Consistent with 1 U.S.C. 112b(k)(5)(A)(i), a 
qualifying non-binding instrument may be concluded between the United 
States (or an agency thereof) and one or more foreign governments (or 
an agency thereof), international organizations, or foreign entities, 
including non-state actors.
    (3) Significance. (i) Consistent with 1 U.S.C. 
112b(k)(5)(A)(ii)(I), and except for a non-binding instrument referred 
to in 1 U.S.C. 112b(k)(5)(B), a non-binding instrument that could 
reasonably be expected to have a significant impact on the foreign 
policy of the United States, and that meets the other elements set out 
in 1 U.S.C. 112b(k)(5), is a qualifying non-binding instrument within 
the meaning of the Act. The degree of significance of any particular 
instrument requires an objective wholistic assessment; no single 
criterion or factor by itself is determinative. In deciding whether a 
particular instrument meets the significance standard, the entire 
context of the transaction, including the factors set out below and the 
expectations and intent of the participants, must be taken into 
account. Factors that may be relevant in determining whether a non-
binding instrument could reasonably be expected to have a significant 
impact on the foreign policy of the United States include whether, and 
to what extent, the instrument:
    (A) Is of importance to the United States' relationship with 
another country, such as by addressing a significant new policy or 
initiative (rather than ongoing activities or cooperation);
    (B) Affects the rights or responsibilities of U.S. citizens, U.S. 
nationals, or individuals in the United States;
    (C) Impacts State laws;
    (D) Has budgetary or appropriations impact;
    (E) Requires changes to U.S. law to satisfy commitments made 
therein;
    (F) Presents a new commitment or risk for the entire Nation); and
    (G) Is of Congressional or public interest.
    (ii) In applying these criteria, neither the form or structure of 
the instrument nor the number of participants involved shall be 
determinative of whether the instrument meets the significance 
standard. Similarly, neither the duration of the activities pursuant to 
the instrument nor the duration of the instrument itself shall be 
determinative of whether the instrument meets the standard. An 
instrument that is technical in nature could meet the standard if, for 
example, it was of particular importance to a bilateral relationship, 
or if it satisfied other of the criteria set out in this section.
    (iii) In the context of these considerations, non-binding 
instruments concluded as part of the regular work of international 
organizations and fora such as the United Nations and its specialized 
agencies, the G-20, and similar multilateral or regional groupings and 
that are made public within 30 days of their conclusion in most 
instances will not be submitted to Congress pursuant to 1 U.S.C. 
112b(k)(5)(A)(ii)(I). Similarly, instruments memorializing general 
outcomes of meetings between senior U.S. officials and foreign 
counterparts and that are made public within 30 days of their 
conclusion in most instances will not be submitted to Congress pursuant 
to 1 U.S.C. 112b(k)(5)(A)(ii)(I).
    (iv) In the context of these criteria, non-binding instruments 
concluded for the purposes of facilitating routine sharing of 
information (including personally identifiable information of U.S. 
citizens, U.S. nationals, or other individuals in the United States) in 
a manner authorized by U.S. law for the purposes of law enforcement 
cooperation, will not, on that basis alone, be regarded as expected to 
have a significant impact on the foreign policy of the United States.
    (c) Non-binding instruments requested by Congress. In accordance 
with section 112b(k)(5)(A)(ii)(II) of the Act, and except for 
instruments referred to in section 112b(k)(5)(B) of the Act, a non-
binding instrument that is the subject of a written communication from 
the Chair or Ranking Member of either of the appropriate congressional 
committees defined in the Act as the Senate Committee on Foreign 
Relations and the House Committee on Foreign Affairs, to the Secretary 
is a qualifying non-binding instrument.


Sec.  181.5  Determinations with respect to qualifying non-binding 
instruments.

    (a) In general. Whether a non-binding instrument constitutes a 
qualifying non-binding instrument for the purposes of the Act shall be 
determined in accordance with this section and 1 U.S.C. 112b(k)(5)(B), 
as referenced in Sec.  181.4(a).
    (b) Significant foreign policy impact non-binding instruments. (1) 
Department of State bureaus whose responsibilities include the 
negotiation of non-binding instruments, or the oversight of negotiation 
of non-binding instruments by posts abroad, shall designate an official 
no lower than the rank of Deputy Assistant Secretary to be responsible 
for the identification of instruments, except for instruments referred 
to in section 112b(k)(5)(B) of the Act, that could reasonably be 
expected to have a significant impact on the foreign policy of the 
United States. In identifying such instruments, bureaus shall take into 
account the considerations set out in Sec.  181.4.
    (2) As provided in Sec.  181.7(a)(2), Department of State bureaus 
whose responsibilities include the negotiation of non-binding 
instruments, or the oversight of negotiation of non-binding instruments 
by posts abroad, shall notify the Bureau of Legislative Affairs and the 
Office of the Assistant Legal Adviser for Treaty Affairs within 15 days 
of the signature, conclusion, or other finalization of a qualifying 
non-binding instrument that they have identified as one that could 
reasonably be expected to have a significant impact on the foreign 
policy of the United States. Bureaus shall also indicate whether the 
instrument has already been published, or whether it is anticipated to 
be published, either on the website of the Department of State or by a 
depositary or other similar administrative body.
    (3) As provided in Sec.  181.7(a)(2), agencies whose 
responsibilities include the negotiation and conclusion of non-binding 
instruments shall transmit to the Department via a memorandum addressed 
to the Department's Executive Secretary the text of any qualifying non-
binding instrument that they, applying the criteria in Sec.  181.4(b), 
determine could reasonably be expected to have a

[[Page 67648]]

significant impact on the foreign policy of the United States within 15 
days of its signature, conclusion, or other finalization. Upon receipt, 
such documents shall be transmitted to the Bureau of Legislative 
Affairs and the Office of the Assistant Legal Adviser for Treaty 
Affairs.
    (4) On a monthly basis, the Bureau of Legislative Affairs and the 
Office of the Assistant Legal Adviser for Treaty Affairs shall compile 
a list of qualifying non-binding instruments received in accordance 
with paragraphs (b)(2) and (3) of this section and shall submit the 
list to the Under Secretary of State for Political Affairs for his or 
her approval for transmittal to the Congress in accordance with the 
procedures set out in Sec.  181.8.
    (5) State Department bureaus and U.S. Government agencies are 
encouraged to identify qualifying non-binding instruments that could 
reasonably be expected to have a significant impact on the foreign 
policy of the United States at the earliest possible stage during the 
negotiating process and to advise of their expected conclusion in 
advance of the deadlines specified in paragraphs (b)(2) and (3) of this 
section, in order to facilitate timely compliance with the Act.
    (c) Qualifying non-binding instruments requested by Congress. The 
Department of State's Bureau of Legislative Affairs shall be 
responsible for receiving on behalf of the Secretary communications 
related to non-binding instruments from the Chair or Ranking Member of 
either of the appropriate congressional committees (see Sec.  
181.4(a)(2)(ii)) in accordance with the Act. Upon receipt of such a 
communication, the Bureau of Legislative Affairs shall immediately 
notify the Department of State bureau or U.S. Government agency 
responsible for the negotiation and conclusion of any qualifying non-
binding instrument that is the subject of the communication, with a 
view to receiving the text of any such qualifying non-binding 
instrument and associated information in accordance with Sec.  
181.7(a)(2) for transmittal to the requesting member in accordance with 
Sec.  181.8.


Sec.  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

[[Page 67649]]

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.


Sec.  181.7  Fifteen-day rule for transmittal of concluded 
international agreements and qualifying non-binding instruments to the 
Department of State.

    (a) This rule, which is required by section 112b(d) of the Act, is 
essential for purposes of permitting the Department of State to meet 
its obligations under the Act to transmit concluded international 
agreements and qualifying non-binding instruments to the Congress by 
the end of the month following their conclusion, and to report on 
international agreements and qualifying non-binding instruments that 
entered into force or became operative by the end of the month 
following the date on which they entered into force or became 
operative.
    (1) International agreements. Any agency, including the Department 
of State, that concludes an international agreement within the meaning 
of the Act, whether entered into in the name of the U.S. Government or 
in the name of the agency, must transmit the following documents and 
certification to the Office of the Assistant Legal Adviser for Treaty 
Affairs at the Department of State in accordance with the procedures 
set out in Volume 11, Foreign Affairs Manual, Chapter 700, as soon as 
possible and in no event to arrive at that office later than fifteen 
(15) days after the date the agreement is signed or otherwise 
concluded:
    (i) Signed or initialed original texts constituting the agreement, 
together with all accompanying papers, including any annex, appendix, 
codicil, side agreement, side letter, or any document of similar 
purpose or function to the aforementioned regardless of the title of 
the document that is entered into contemporaneously and in conjunction 
with the agreement, and any implementing agreements or arrangements or 
any document of similar purpose or function to the aforementioned 
regardless of the title of the document that is entered into 
contemporaneously and in conjunction with the agreement. (See Sec.  
181.10.) The texts transmitted must be accurate, legible, and complete, 
and must include the texts of all languages in which the international 
agreement was signed, or initialed;
    (A) Where the original texts of concluded international agreements 
are not available, certified copies must be transmitted in the same 
manner as original texts. A certified copy must be an exact copy of the 
signed original.
    (B) When an exchange of diplomatic notes between the United States 
and a foreign government constitutes an international agreement or has 
the effect of extending, modifying, or terminating an international 
agreement, a properly certified copy of the note from the United States 
to the foreign government, and the signed original or the note from the 
foreign government to the United States, must be transmitted.
    (C) If in conjunction with the international agreement signed, 
other diplomatic notes are exchanged (either at the same time, 
beforehand, or subsequently), properly certified copies of the 
diplomatic notes from the United States to the foreign government must 
be transmitted with the signed originals of the notes from the foreign 
government.
    (D) Copies may be certified either by a certification on the 
document itself, or by a separate certification attached to the 
document.
    (1) A certification on the document itself is placed at the end of 
the document, either typed or stamped, and states that the document is 
a true copy of the original text signed or initialed by (insert full 
name of signatory), and is signed by the certifying officer.
    (2) A certification on a separate document is typed and briefly 
describes the document being certified and states that it is a true 
copy of the original text signed or initialed by (insert full name of 
signatory), and is signed by the certifying officer.
    (ii) A signed memorandum of language conformity obtained pursuant 
to Sec.  181.6(g), as applicable;
    (iii) A statement listing the names and titles/positions of the 
individuals signing or initialing the international agreement for the 
foreign government as well as for the United States, unless clear in 
the texts being transmitted;
    (iv) A statement identifying the Circular 175 authorization 
pursuant to which the international agreement was concluded, so that 
the sources of legal authority relevant to the agreement's conclusion 
and implementation may be readily identified for inclusion in reporting 
to Congress under the Act; and
    (v) the exchange of diplomatic notes bringing an international 
agreement into force, as applicable.
    (2) Qualifying non-binding instruments. (i) When a Department of 
State bureau identifies a non-binding instrument that is not covered by 
section 112b(k)(5)(B) of the Act as one that could reasonably be 
expected to have a significant impact on the foreign policy of the 
United States pursuant to Sec.  181.5(b), the bureau shall provide to 
the Bureau of Legislative Affairs and the Office of the Assistant Legal 
Adviser for Treaty Affairs within 15 days of the conclusion of the 
qualifying non-binding instrument the documents and information 
specified in paragraph (a)(1)(iv) of this section.
    (ii) When an agency other than the Department of State, applying 
the criteria in Sec.  181.4(b), determines that a non-binding 
instrument (other than a non-binding instrument covered by section 
112b(k)(5)(B) of the Act) could reasonably be expected to have a 
significant impact on the foreign policy of the United States, the 
agency shall transmit to the Department via a memorandum addressed to 
the Department's Executive Secretary within 15 days of the conclusion 
of the qualifying non-binding instrument the documents and information 
specified in subparagraph iv.
    (iii) When a Department of State bureau or an agency receives from 
the Department of State's Bureau of Legislative Affairs notice of a 
written communication related to a qualifying non-binding instrument 
from the Chair or Ranking Member of either of the appropriate 
congressional committees in accordance with Sec.  181.5(c), the bureau 
or agency shall provide to the Bureau of

[[Page 67650]]

Legislative Affairs and the Office of the Assistant Legal Adviser for 
Treaty Affairs within 15 days the documents and information specified 
in subparagraph iv.
    (iv) The documents and information to be provided pursuant to 
paragraphs (a)(2)(i), (ii), and (iii) of this section are as follows:
    (A) The text of the qualifying non-binding instrument (the signed 
original instrument need not be submitted), together with all 
accompanying papers, including any annex, appendix, codicil, side 
agreement, side letter, or any document of similar purpose or function 
to the aforementioned regardless of the title of the document that is 
entered into contemporaneously and in conjunction with the instrument, 
and any implementing agreements or arrangements or any document of 
similar purpose or function to the aforementioned regardless of the 
title of the document that is entered into contemporaneously and in 
conjunction with the instrument (See section 181.10);
    (B) A detailed description of the Constitutional, statutory, or 
treaty authority relied upon to conclude the qualifying non-binding 
instrument. 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;
    (C) A description of any new or amended statutory or regulatory 
authority anticipated to be required to implement the instrument for 
inclusion in reporting to Congress under the Act; and
    (D) An indication of whether the text has been published on the 
website of the Department of State or of another U.S. Government 
agency, or by a depositary or other similar administrative body.
    (b) On an ongoing basis, State Department bureaus and U.S. 
Government agencies shall promptly provide to the Bureau of Legislative 
Affairs and the Assistant Legal Adviser for Treaty Affairs any 
implementing materials related to an international agreement or 
qualifying non-binding instrument needed to respond to a request from 
the Chair or Ranking Member of the Committee on Foreign Relations of 
the Senate or the Committee on Foreign Affairs of the House of 
Representatives for such materials in accordance with 1 U.S.C. 112b(c). 
State Department bureaus and U.S. Government agencies shall provide to 
the Bureau of Legislative Affairs and the Assistant Legal Adviser for 
Treaty Affairs materials responsive to the congressional communication 
within 15 days of being informed of such communication.
    (c) In the event the text of an international agreement or 
qualifying non-binding instrument changes between the time of its 
conclusion and the time of its entry into force or effect, State 
Department bureaus and U.S. Government agencies shall provide to the 
Assistant Legal Adviser for Treaty Affairs the revised text of the 
agreement or qualifying non-binding instrument within 15 days of its 
entry into force or effect so that the Department is able to provide 
the revised text to Congress within the statutorily-required time 
period.


Sec.  181.8  Transmittal to the Congress.

    (a) Not less frequently than once each month the Assistant Legal 
Adviser for Treaty Affairs shall transmit to the Majority Leader of the 
Senate, the Minority Leader of the Senate, the Speaker of the House of 
Representatives, the Minority Leader of the House of Representatives, 
and to the Committee on Foreign Relations of the Senate and the 
Committee on Foreign Affairs of the House of Representatives the 
following:
    (1) A list of all international agreements and qualifying non-
binding instruments signed, concluded, or otherwise finalized during 
the prior month;
    (2) The text of all international agreements and qualifying non-
binding instruments described in subparagraph (a)(1) of this section;
    (3) For each international agreement and qualifying non-binding 
instrument transmitted, a detailed description of the legal authority 
relied upon to enter into the international agreement or qualifying 
non-binding instrument;
    (4) A list of all international agreements that entered into force 
and qualifying non-binding instruments that became operative for the 
United States or an agency of the United States during the prior month;
    (5) The text of all international agreements and qualifying non-
binding instruments described in paragraph (a)(4) of this section if 
such text differs from the text of the agreement or instrument 
previously provided pursuant to paragraph (a)(2) of this section; and
    (6) A statement describing any new or amended statutory or 
regulatory authority anticipated to be required to fully implement each 
international agreement and qualifying non-binding instrument included 
in the list described in paragraph (a)(1) of this section.
    (b) If any of the information or texts to be transmitted pursuant 
to paragraph (a) of this section is or contains classified information, 
the Assistant Legal Adviser for Treaty Affairs shall transmit such 
information or texts in a classified annex.
    (c) Pursuant to section 12 of the Taiwan Relations Act (22 U.S.C. 
3311), any agreement entered into between the American Institute in 
Taiwan and the governing authorities on Taiwan, or any agreement 
entered into between the Institute and an agency of the United States 
Government, shall be transmitted by the Assistant Legal Adviser for 
Treaty Affairs to the President of the Senate and to the Speaker of the 
House of Representatives as soon as practicable after the entry into 
force of such agreements, but in no event later than 60 days 
thereafter. Classified agreements entered into by the Institute shall 
be transmitted by the Assistant Legal Adviser for Treaty Affairs to the 
Senate Committee on Foreign Relations and the House Committee on 
Foreign Affairs.


Sec.  181.9  Publication of international agreements and qualifying 
non-binding instruments.

    (a) Publication of international agreements. Not later than 120 
days after the date on which an international agreement enters into 
force, the Office of the Assistant Legal Adviser for Treaty Affairs 
shall be responsible for making the text of the agreement, as that term 
is defined in Sec.  181.10, available to the public on the website of 
the Department of State, unless one of the exemptions to publication in 
paragraph (d) of this section applies.
    (b) Publication of qualifying non-binding instruments. Not less 
frequently than once every 120 days, the Assistant Legal Adviser for 
Treaty Affairs shall provide to the Bureau of Administration and the 
Bureau of Administration shall publish on the website of the Department 
of State the text, as that term is defined in Sec.  181.10(c), of each 
qualifying nonbinding instrument that became operative during the 
preceding 120 days, unless one of the exemptions to publication in 
paragraph (d) of this section applies. In the case of a qualified non-
binding instrument that is the subject of a communication from the 
Chair or Ranking Member of either of the appropriate congressional 
committees pursuant to section 112b(k)(5)(A)(ii)(II) of the Act, the

[[Page 67651]]

Bureau of Legislative Affairs, in coordination with the Assistant Legal 
Adviser for Treaty Affairs, shall provide the text of the instrument, 
as that term is defined in Sec.  181.1(c), to the Bureau of 
Administration for publication on the website of the Department of 
State, unless one of the exemptions to publication in paragraph (d) of 
this section applies.
    (c) Publication of information related to international agreements 
and qualifying non-binding instruments. With respect to each 
international agreement published pursuant to paragraph (a) of this 
section and each qualifying non-binding instrument published pursuant 
to paragraph (b) of this section, and with respect to international 
agreements and qualifying non-binding instruments that have been 
separately published by a depositary or other similar administrative 
body in accordance with paragraph (d)(i)(v) of this section, the 
Assistant Legal Adviser for Treaty Affairs shall provide to the Bureau 
of Administration for publication on the website of the Department of 
State within the timeframes specified in those subsections a detailed 
description of the legal authority relied upon to enter into the 
agreement or instrument, and a statement describing any new or amended 
statutory or regulatory authority anticipated to be required to 
implement the agreement or instrument.
    (d) Exemptions from publication. (1) Pursuant to 1 U.S.C. 
112b(b)(3), the following categories of international agreements and 
qualifying non-binding instruments will not be published:
    (i) International agreements and qualifying non-binding instruments 
that contain information that has been given a national security 
classification pursuant to Executive Order 13526 (50 U.S.C. 3161 note; 
relating to classified national security information) or any 
predecessor or successor order, or that contain any information that is 
otherwise exempt from public disclosure pursuant to United States law. 
``Information that is otherwise exempt from public disclosure pursuant 
to United States law'' includes information that is exempt from public 
disclosure under the Freedom of Information Act pursuant to one of the 
exemptions set out in 5 U.S.C. 552(b)(1) through (9);
    (ii) International agreements and qualifying non-binding 
instruments that address military operations, military exercises, 
acquisition and cross servicing, logistics support, military personnel 
exchange or education programs, or the provision of health care to 
military personnel on a reciprocal basis;
    (iii) International agreements and qualifying non-binding 
instruments that establish the terms of grant or other similar 
assistance, including in-kind assistance, financed with foreign 
assistance funds pursuant to the Foreign Assistance Act of 1961 (22 
U.S.C. 2151 et seq.) or the Food for Peace Act (7 U.S.C. 1691 et seq.);
    (iv) International agreements and qualifying non-binding 
instruments, such as project annexes and other similar instruments, for 
which the principal function is to establish technical details for the 
implementation of a specific project undertaken pursuant to another 
agreement or qualifying nonbinding instrument that has been published 
in accordance with 1 U.S.C. 112b(b)(1) or (2);
    (v) International agreements and qualifying non-binding instruments 
that have been separately published by a depositary or other similar 
administrative body, except that the information described in Sec.  
181.8(a)(3) and (6) relating to such international agreements and 
qualifying non-binding instruments shall be made available to the 
public on the website of the Department of State in accordance with 
paragraph (c) of this section; and
    (vi) any international agreements and qualifying non-binding 
instruments within one of the above categories that had not been 
published as of September 19, 2023, unless, in the case of such a non-
binding instrument, the instrument is the subject of a written 
communication from the Chair or Ranking Member of either the Committee 
on Foreign Relations of the Senate or the Committee on Foreign Affairs 
of the House of Representatives to the Secretary in accordance with 1 
U.S.C. 112b(k)(5)(A)(ii)(II).
    (2) Pursuant to 1 U.S.C. 112a(b), any international agreements and 
qualifying non-binding instruments in the possession of the Department 
of State, other than those in paragraph (d)(1)(i) of this section, but 
not published will be made available upon request by the Department of 
State.
    (3) Pursuant to 1 U.S.C. 112b(l)(1), nothing in the Act may be 
construed to authorize the withholding from disclosure to the public of 
any record if such disclosure is required by law.


Sec.  181.10  Definition of ``text''.

    (a) In accordance with 1 U.S.C. 112b(k)(7), the term ``text'' with 
respect to an international agreement or qualifying non-binding 
instrument includes:
    (1) Any annex, appendix, codicil, side agreement, side letter, or 
any document of similar purpose or function to the aforementioned, 
regardless of the title of the document, that is entered into 
contemporaneously and in conjunction with the international agreement 
or qualifying non-binding instrument; and
    (2) Any implementing agreement or arrangement, or any document of 
similar purpose or function to the aforementioned regardless of the 
title of the document, that is entered into contemporaneously and in 
conjunction with the international agreement or qualifying non-binding 
instrument.
    (b) 1 U.S.C. 112b(k)(7) further provides that, as used in this 
definition, the term ``contemporaneously and in conjunction with'':
    (1) Shall be construed liberally; and
    (2) May not be interpreted to require any action to have occurred 
simultaneously or on the same day.

Joshua L. Dorosin,
Deputy Legal Adviser, Department of State.
[FR Doc. 2023-21666 Filed 9-29-23; 8:45 am]
BILLING CODE 4710-08-P


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