Chapter 4: Essential Elements of the Background Document
The Department of State relies on the originating agency to provide background information that will assist in its review of the proposed agreement and to help discern the intention of that agency. The Background Document should include the following sections:
1. Background and History: In this section, the agency should describe briefly the steps that have led it to propose the agreement. This section may contain a statement related to the agency's goals and objectives that explains the rationale for undertaking cooperative S&T agreements.
2. Benefits to the United States: This section should identify the range of policy, technical, informational, and other advantages to the United States under the proposed agreement.
3. Funding: In this section, the agency should clearly indicate how the activities under the proposed agreement will be funded. If the proposed agreement is not subject to the availability of appropriated funds, a statement should be given describing the existing funding sources to carry out U.S. obligations under the proposed agreement, including any proposed activities. If there is an implicit or explicit commitment of current or future agency resources for which there is no existing appropriation, the agency must clear the agreement with the appropriate Resource Management Office in the Office of Management and Budget (through OMB's State Department Branch) to determine whether such a commitment can be made.
4. Environmental Impact: A 1979 Executive Order directs all USG agencies to consider environmental implications of activities that they plan to implement outside the territory of the U.S.11 The critical issue is whether conclusion of the agreement would cause significant adverse environmental impacts on a third country not participating in the negotiation. If the answer is affirmative, the agency must provide documentation under E.O. 12114. If not, the following language may be used:
Environmental documentation is not required under E.O. 12114 of January 4, 1979.
If an agreement would have an environmental impact in the United States, reference to that fact must be included.
5. Routine, Non-controversial Agreement: A proposed S&T agreement must be "non-controversial" or routine in order to qualify for the abbreviated C-175 procedures described in this Supplementary Handbook. Agreements addressing politically and/or technically sensitive topics or countries or presenting complex legal issues need to follow the more lengthy C-175 process described in the C-175 Handbook. This lengthier process involves a more detailed background explanation, a description of the agreement's essential factors, Department of State approval above the Assistant Secretary level, and a separate Memorandum of Law. If in doubt as to the non-controversial or routine nature of a proposed agreement, consult the Department of State Office of Science and Technology Cooperation (OES/STC).
6. Congressional and Public Consultations: This section should address the following questions:
a) Are the agreement and its related activities likely to be controversial or involve political sensitivities?
b) Has the agency already engaged in, or does it intend to engage in, any consultations with Congress?
c) Has there been, or will there be, any opportunity for public comment on the proposed agreement?
This information will assist the Department of State in determining the need for congressional consultations and to incorporate appropriate language into the C-175 decision memorandum.
Intellectual Property Rights: A description must be included of the type(s) of intellectual property rights (IPR) that could be created in the course of implementing the agreement, including rights to and management of data and information products. There should be a statement describing the manner in which IPR are to be protected. Generally, one of the following three conditions may apply:
a) No IP is expected to be created;
b) An IPR Annex is attached to the proposed agreement;12
c) The arrangement is subject to an existing Umbrella Agreement and refers to the Umbrella Agreement's IPR Annex.13
8. Legal Authority: The legal authority description must list the statutory authority or authorities of each agency responsible to enter into international agreements as well as for engaging in the activities specified in the agreement. These authorities must be described in sufficient detail in language that a non-lawyer can easily understand. This section must have been drafted or approved by the agency's office of general counsel.14
11See Executive Order 12114 of January 4, 1979 Related Environmental Impact Statements in Appendix G.
12Since 1999, an Interagency Working Group on IPR, under the direction of Committee of International Science, Engineering and Technology (CISET) of the National Science and Technology Council, has been developing a revised policy approach and a package of IPR Annexes. See Appendix H for a selection of options for use in international S&T agreements.
14Legal authority of the United States to negotiate and conclude an agreement also generally included in the C-175 Decision Memorandum as follows: "Legal authority to negotiate and conclude the subject Memorandum of Understanding derives from the President's Constitutional powers (Article II) and his authority to represent the nation in foreign affairs, as exercised by the Secretary of State on a day-to-day basis. (22 U.S.C. 2656). Additional authority is contained in 22 U.S.C. 2656d, which states that the "Secretary of State. . . shall have primary responsibility for coordination and oversight with respect to all major science or science and technology agreements and activities between the United States and foreign countries." On December 21, 1981, pursuant to Circular 175 procedures, the Under Secretary of State for Security Assistance, Science and Technology reconfirmed the authority of OES to approve the negotiation and conclusion of routine science and technology agreements with other governments, subject to the approval of the final texts by the appropriate regional bureau and L.