The Case-Zablocki Act of August 22, 1972, 1 U.S.C. § 112b (the Act) requires consultation with the Secretary of State before any international agreement may be signed or concluded on behalf of the United States.

"Notwithstanding 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." 1 U.S.C. § 112b(c). The Act clearly applies to government agencies and "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." 22 C.F.R. § 181.2(b).


Compliance with the Act begins with a determination of 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.” 22 C.F.R. § 181.2(a). This determination is based on five (5) criteria set forth in State Department regulations:

22 C.F.R. § 181.2(a)(1)-(5).To satisfy the first criterion (Identity and intention of the parties), a party must be a State, State agency or an intergovernmental organization and the parties must intend for the agreement to be binding under international law. The second criterion (Significance of the arrangement) depends on the political significance of the agreement, the amount of funding involved, and whether the agreement involves 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. The third criterion (Specificity) turns on the presence of objective criteria for determining enforceability and the precision/specificity of the language used in the agreement. The fourth criterion (Necessity for two or more parties) is self-explanatory. Unilateral commitments do not constitute international agreements. The fifth criterion (Form of the agreement) can also be a significant factor, but it is not generally considered determinative. 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. It is the substance of the agreement and not its title (e.g., MOU, MOA, exchange of notes, protocol, note verbale, agreed minute) which is determinative. 22 C.F.R. § 181.2(a)(5).

Department of Commerce and NOAA Procedures

To implement the Act, the Department of Commerce prescribes a specific set of policies, procedures, and responsibilities regarding the negotiation and conclusion of treaties and other international agreements in Department Administrative Order (DAO) 218-4 (Jan. 14, 1992). Pursuant to these procedures, if an agreement is determined to be a "binding international agreement," a Circular 175 (C-175) process, managed by the Department of State, is triggered. The C-175 process provides streamlined procedures for "routine scientific or technical agreements," and more rigorous procedures for complex agreements. 

Under the DAO, no Department official or employee may initiate, negotiate, or enter into an international agreement without the prior authorization of a Department of Commerce Secretarial Officer or the head of an Department of Commerce operating unit. DAO 218-4, § 4.01. The negotiation and conclusion of international agreements may not be undertaken without prior coordination with the Department of Commerce General Counsel. DAO 218-4, § 4.02.

DAO 218-4 only applies to discussions with foreign governments that are considered negotiations. “In general, negotiations are structured discussions intended to lead to an international agreement.” DAO 218-4, § 3.02(a). When there is a question whether a discussion constitutes a negotiation for purposes of the DAO, advice should be sought from the Office of General Counsel. The DAO does not apply to negotiations led or chaired by another agency or negotiations approved by an interagency committee or council established for that purpose and of which the Department of State is a member. DAO 218-4, § 3.02(b), (c).

NOAA Guidance on implementing DAO 218-4 and ultimately the Act ensure proper intra- and interagency consultation and coordination based upon a threshold determination as to whether a proposed agreement is an international agreement for purposes of the Case-Zablocki Act.

Separate and independent of the Case-Zablocki Act and Department of Commerce policies and procedures for implementing it, the Department of Commerce Office of General Counsel has a required process for the legal review and clearance of all agreements and MOUs entered into by the Department or a component thereof. This requirement, which dates to at least a 1997 memorandum from Acting Department of Commerce General Counsel Susan G. Esserman, is codified in the Department’s Agreement Handbook (Nov. 2011)The General Law Division of the Department of Commerce Office of General Counsel issued guidance on the process associated with this legal review and clearance requirement in September 2012.

Resources and References

Updated November 19, 2020