Federal Register: RULES [22 CFR Parts 7 and 50]

DEPARTMENT OF STATE

CFR Citation: 22 CFR Parts 7 and 50

RIN ID: RIN 1400-AC49

DOCUMENT ID: [Public Notice 6298]

NOTICE: RULES

DOCUMENT ACTION: Interim final rule.

SUBJECT CATEGORY: Board of Appellate Review; Review of Loss of Nationality

DATES: The rule is effective on July 18, 2008.
Comment Date: The Department will accept written comments from the public through September 16, 2008.

DOCUMENT SUMMARY: This interim final rule eliminates the Department's Board of Appellate Review (L/BAR), which had been authorized to review certain Department determinations, in particular those related to loss of citizenship and passport denials. Because L/BAR's jurisdiction has been superseded or made obsolete for several years, and in large part replaced by review of loss of citizenship and passport matters by the Department's Bureau of Consular Affairs, this rule eliminates L/BAR and authorizes on a discretionary basis an alternative, less cumbersome review of loss of nationality determinations by the Bureau of Consular Affairs.

SUMMARY: Board of Appellate Review; Review of Loss of Nationality,

SUPPLEMENTAL INFORMATION

Elimination of Board of Appellate Review (L/BAR)

The Board of Appellate Review, which is part of the Office of the Legal Adviser for administrative purposes and thus referred to by the acronym ``L/BAR,'' was established to provide a mechanism for appeal of certain administrative decisions of the Department of State. However, as described below, its jurisdiction has been superseded or made obsolete for several years, replaced in large part by review of loss of citizenship and passport matters by the Bureau of Consular Affairs. This rule accordingly reflects current departmental practice and organization related to review of loss of citizenship.

As a result of consolidations through subsequent regulations, 22 CFR 7.3 currently provides that L/BAR is responsible for appeals from: (1) Administrative decisions of loss of nationality or expatriation; (2) administrative decisions denying, revoking, restricting or invalidating a passport under certain provisions; (3) final decisions of contracting officers not otherwise provided for in the Department's contract appeal regulations; (4) administrative determinations under 22 CFR 64.1(a) denying assistance to U.S. nationals who do not comply with the Fair Labor Standards in 22 CFR 61.2; and, (5) administrative decisions in such other cases and under such terms of reference as the Secretary authorizes.

Amendments to Federal statutes and regulations other than 22 CFR part 7 have significantly narrowed L/BAR authorities, and thus very few or no appeals are brought to it. Although 22 CFR 7.3(b) gave L/BAR jurisdiction over certain passport denial, revocation, and restriction cases, subsequent changes to 22 CFR part 51 superseded that provision, most recently revisions effective February 1, 2008 to 22 CFR 51.70 51.74 (formerly 22 CFR 51.80 et seq.), 72 Federal Register 222 (November 19, 2007), p. 64939. With
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respect to Sec. 7.3(a), persons determined to have lost U.S. nationality typically seek reconsideration from the Bureau of Consular Affairs, which provides for a less cumbersome and more timely procedure. Moreover, the Consular Affairs Bureau will consider a request for such review without time limitation, while L/BAR sets a oneyear time limit for appeals. Very few of those who appeal do so within one year. Consequently, the number of appeals to L/BAR in recent years has dramatically diminished.

Respecting 22 CFR 7.3(c), L/BAR no longer has jurisdiction over any appeals from final decisions of contracting officers, as its authority over such appeals has been terminated (see 41 U.S.C. 607 and the Department's Acquisition Regulations, 48 CFR part 633). As for Sec. 7.3(d), L/BAR's jurisdiction over denials of assistance in cases involving failures to comply with Fair Labor Standards has long been outdated, because the sanctions implemented by those standards are no longer in force and the regulations implementing them in 22 CFR have been superseded. Finally, the Secretary has not conferred jurisdiction on L/BAR to hear appeals of any other Department administrative decisions, as provided for in 22 CFR 7.3(e).

Because its jurisdiction is obsolete or has been eliminated, and its theoretical functions exercised by other bodies or offices, there is no longer a need for L/BAR. Accordingly, this regulation eliminates the current regulations in part 7 of 22 CFR (reserving part 7) and with it L/BAR.

The Administrative Procedure Act, 5 U.S.C. 553(b), does not require notice and public comment of ``rules of agency organization, procedure, or practice.'' This rule pertains to agency organization, management, and practice for expatriation review and is being published as an interim final rule. The Department remains interested, however, in receiving for consideration any views from the public with respect to the rule, and is therefore requesting public comment by the due date noted above.

Appeals From Determinations of Loss of Nationality

The elimination of L/BAR means there will no longer be a formal administrative appeal of lossofnationality determinations by the Department. Revisions to 22 CFR 50.51 delete references to an appeal to L/BAR.

Importantly, the Department expects to continue its current discretionary practice of reviewing prior findings of loss of nationality at the request of an affected individual who believes the finding should be reversed in light of subsequent legal developments (for example, an intervening Supreme Court decision) or when substantial new facts become available relevant to involuntariness or absence of intent at the time of the expatriating act. The revisions to 22 CFR 50.51 codify this discretionary practice, which is now partially codified in 22 CFR 7.2(b). In addition, the Bureau of Consular Affairs has modified its procedures for such reviews to provide that each case submitted for reconsideration will be examined by an officer who was not involved in the original determination using specified criteria.

Revisions to 22 CFR 50.51 also clarify that requesting reconsideration by the Department of a finding of loss of nationality is neither a mandatory procedure prior to resort to judicial processes nor a formal ``procedure for administrative appeal'' for purposes of section 358 of the INA (8 U.S.C. 1501). Accordingly, the issuance of a Certificate of Loss of Nationality constitutes the ``final administrative determination'' and ``final administrative denial'' for purposes of INA Sec. Sec. 358 and 360 (8 U.S.C. 1501 & 1503), respectively. This means that the fiveyear statute of limitations for bringing an action in federal court under INA Sec. 360 (8 U.S.C. 1503) to overturn a determination of loss of nationality begins to run when the Certificate of Loss of Nationality is issued. The Department imposes no time limit for requesting its discretionary reconsideration by the Bureau of Consular Affairs of a finding of loss, and as such this review is not intended to serve as a formal ``appeal procedure'' that may affect the running of the statutory statute of limitations contained in 8 U.S.C. 1503.
Regulatory Findings

Administrative Procedure Act

The Department is publishing this rule as an interim final rule, with 60 days for postpromulgation public comments, in accordance with the exemption contained in 5 U.S.C. 553(a)(2) for matters relating to agency management or personnel.
Regulatory Flexibility Act/Executive Order 13272: Small Business

Since this action is exempt from the notice and comment procedures contained in 5 U.S.C. 553, and no other statute mandates such procedures, no analysis under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is required. However, these changes to the regulations are 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. 601612, and Executive Order 13272, section 3(b).
The Small Business Regulatory Enforcement Fairness Act of 1996

This interim final rule is not a major rule, as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United Statesbased companies to compete with foreignbased companies in domestic and export markets.

The Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 1044, 109 Stat. 64, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing or adopting any rule that may result in an annual expenditure of $100 million or more (adjusted annually for inflation) by state, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure nor will it significantly or uniquely affect small governments.

Executive Orders 12372 and 13132: Federalism

This regulation 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 government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

Executive Order 12866: Regulatory Review

The Department of State has reviewed this interim final rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of the regulation justify its costs. The Department does not consider the rule to be a significant regulatory action within the scope of section 3(f)(1) of the Executive Order.
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Executive Order 12988: Civil Justice Reform

The Department has reviewed the regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 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 (PRA), 44 U.S.C. 3501, et seq., Federal agencies must obtain approval from OMB for most collections of information they conduct, sponsor, or require through regulation. The Department of State has determined that this rule does not require new collection of information for purposes of the PRA. List of Subjects in 22 CFR Part 7

Board of Appellate Review.
List of Subjects in 22 CFR Part 50

Citizenship, Nationality, Loss of Nationality.
Accordingly, under the authority of 22 U.S.C. 2651a, for the reasons set forth in the preamble, the Department amends 22 CFR chapter I as follows:
PART 7[REMOVED AND RESERVED]
1. Part 7 is removed and reserved.
PART 50NATIONALITY PROCEDURES[AMENDED]
2. The authority citation for part 50 is revised to read as follows:

Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104 and 1401 through 1504. 3. Revise Sec. 50.51 to read as follows:
Sec. 50.51 Review of finding of loss of nationality.
(a) There are no prescribed ``procedures for administrative appeal'' of issuance of a Certificate of Loss of Nationality for purposes of Sec. 358 of the Immigration and Nationality Act (8 U.S.C. 1501) and no mandatory administrative review procedure prior to resort to judicial processes under Sec. 360 of the Immigration and Nationality Act (8 U.S.C. 1503). Nevertheless, the Department may in its discretion review determinations of loss of nationality at any time after approval of issuance of the Certificate of Loss of Nationality to ensure consistency with governing law (see INA Sec. Sec. 349 and 356, 8 U.S.C. 1481 and 1488). Such reconsideration may be initiated at the request of the person concerned or another person determined in accordance with guidance issued by the Department to have a legitimate interest.
(b) The primary grounds on which the Department will consider reversing a finding of loss of nationality and vacating a Certificate of Loss of Nationality are:
(1) The law under which the finding of loss was made has been held unconstitutional; or
(2) A major change in the interpretation of the law of expatriation is made as a result of a U.S. Supreme Court decision; or
(3) A major change in the interpretation of the law of expatriation is made by the Department, or is made by a court or another agency and adopted by the Department; and/or
(4) The person presents substantial new evidence, not previously considered, of involuntariness or absence of intent at the time of the expatriating act.
(c) When the Department reverses a finding of loss of nationality, the person concerned shall be considered not to have lost U.S. nationality as of the time the expatriating act was committed, and the Certificate of Loss of Nationality shall be vacated.
(d) Requesting the Department to reverse a finding of loss of nationality and vacate a Certificate of Loss of Nationality is not a prescribed ``procedure for administrative appeal'' for purposes of Sec. 358 of the Immigration and Nationality Act (8 U.S.C. 1501). The Department's decision in response to such a request is not a prescribed ``procedure for administrative appeal'' for purposes of Sec. 358 of the Immigration and Nationality Act (8 U.S.C. 1501). The issuance of a Certificate of Loss of Nationality by the Department is a ``final administrative determination'' and ``final administrative denial'' for purposes of Sec. Sec. 358 and 360 of the Immigration and Nationality Act (8 U.S.C. 1501 and 1503), respectively.

Dated: July 9, 2008.
Janice L. Jacobs,
Assistant Secretary of State, Consular Affairs, Department of State. [FR Doc. E816247 Filed 71708; 8:45 am]
BILLING CODE 471006P

FOR FURTHER INFORMATION CONTACT Monica A. Gaw, Office of Policy Review and InterAgency Liaison, Overseas Citizens Services, who may be reached at (202) 7369110.