Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Rules and Regulations 67643 

email: fr.inspection@nara.gov, or go to: 

www.archives.gov/federal-register/cfr/ibrlocations.html. 

Issued on September 18, 2023. 

Victor Wicklund, 

Deputy Director, Compliance & Airworthiness 

Division, Aircraft Certification Service. 

[FR Doc. 2023–21632 Filed 9–29–23; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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: 

• Internet (preferred): At 

www.regulations.gov, you can search for 

the document using Docket Number 

DOS–2023–0024 or RIN 1400–AF63. 

• Email: Michael Mattler, Office of 

the Legal Adviser, U.S. Department of 

State, treatyoffice@state.gov. 

• 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 treatyoffice@state.gov. 

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 nonbinding instruments (Section 181.4) and 

one regarding the process the 

Department of State will follow for 

assessing whether particular nonbinding 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 


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67644 Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Rules and Regulations 

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. 

■ 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. 

§ 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 CaseZablocki 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 


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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. 

§ 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 

§ 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 


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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. Agencylevel 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 § 181.3. 

§ 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 § 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 

§ 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. 

§ 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 


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Federal Register / Vol. 88, No. 189 / Monday, October 2, 2023 / Rules and Regulations 67647 

regarding the transmittal to Congress 

and publication of qualifying nonbinding 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 nonbinding 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 nonbinding 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. 

§ 181.5 Determinations with respect to 

qualifying non-binding instruments. 

(a) In general. Whether a non-binding 

instrument constitutes a qualifying nonbinding 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 nonbinding 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 nonbinding instruments shall transmit to 

the Department via a memorandum 

addressed to the Department’s Executive 

Secretary the text of any qualifying nonbinding instrument that they, applying 

the criteria in § 181.4(b), determine 

could reasonably be expected to have a 


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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. 

§ 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 nonbinding 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 


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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. 

§ 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 § 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 § 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 

§ 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 nonbinding 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 § 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 § 181.5(c), the bureau 

or agency shall provide to the Bureau of 


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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 nonbinding 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. 

§ 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. 

§ 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 § 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 nonbinding 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 § 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 


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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 § 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 § 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. 

§ 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 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 81 

[EPA–R02–OAR–2021–0871; FRL–11226– 

02–R2] 

Air Plan Approval; New Jersey; 

Redesignation of the Warren County 

1971 Sulfur Dioxide Nonattainment 

Area to Attainment and Approval of the 

Area’s Maintenance Plan 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: On November 15, 2021, the 

New Jersey Department of 

Environmental Protection (NJDEP) 

submitted a request for the 

Environmental Protection Agency (EPA) 

to approve the redesignation of the New 

Jersey portion of the Northeast 

Pennsylvania-Upper Delaware Valley 

Interstate Air Quality Control Region 

(Warren County, New Jersey) from 

nonattainment to attainment for the 

1971 Sulfur Dioxide (SO2) National 

Ambient Air Quality Standards 

(NAAQS). In conjunction with its 

redesignation request, NJDEP submitted 

a State Implementation Plan (SIP) 

revision containing a limited 

maintenance plan and its associated 

contingency measures for the Warren 

County 1971 SO2 Nonattainment Area 

(Warren County SO2 NAA) to ensure 


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