22 CFR § 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 § 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 § 181.4.
(2) As provided in § 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 § 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 § 181.4(b), determine could reasonably be expected to have a 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 § 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 § 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 § 181.7(a)(2) for transmittal to the requesting member in accordance with § 181.8.