22 CFR § 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 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. 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.