[Federal Register: July 18, 2008 (Volume 73, Number 139)]
[Rules and Regulations]
[Page 41256-41258]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jy08-7]
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DEPARTMENT OF STATE
22 CFR Parts 7 and 50
[Public Notice 6298]
RIN 1400-AC49
Board of Appellate Review; Review of Loss of Nationality
AGENCY: Department of State.
ACTION: Interim final rule.
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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superseded or made obsolete for several years, and in large part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.
DATES: The rule is effective on July 18, 2008.
Comment Date: The Department will accept written comments from the
public through September 16, 2008.
ADDRESSES: You may submit comments, identified by the following methods
(no duplicates please):
Federal eRulemaking Portal: http://www.regulations.gov/
search/index.jsp (follow the instructions for submitting comments):
Electronically: Comments.22.CFR.part7.update@state.gov.
Attachments must be in Microsoft Word.
Mail (paper, disk, or CD-ROM submissions): Comments by
mail should be addressed to: Director, Office of Policy Review and
InterAgency Liaison, Overseas Citizens Services, 2100 Pennsylvania
Ave., NW., 4th Floor, Washington, DC 20037, fax (202) 736-9111.
FOR FURTHER INFORMATION CONTACT: Monica A. Gaw, Office of Policy Review
and InterAgency Liaison, Overseas Citizens Services, who may be reached
at (202) 736-9110.
SUPPLEMENTARY 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as described below, its jurisdiction has been superseded or made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
[[Page 41257]]
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
one-year 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 loss-of-nationality 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 five-year 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 post-promulgation 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. 601-612, 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 104-121. 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 States-based
companies to compete with foreign-based 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 104-4, 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.
[[Page 41258]]
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.
0
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]
0
1. Part 7 is removed and reserved.
PART 50--NATIONALITY PROCEDURES--[AMENDED]
0
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.
0
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. E8-16247 Filed 7-17-08; 8:45 am]
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