[Federal Register Volume 76, Number 89 (Monday, May 9, 2011)]
[Proposed Rules]
[Pages 26651-26654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11242]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 76, No. 89 / Monday, May 9, 2011 / Proposed 
Rules  

[[Page 26651]]



DEPARTMENT OF STATE

2 CFR Chapter VI

22 CFR Chapter I

28 CFR Chapter XI

48 CFR Chapter 6

[Public Notice: 7447]


Reducing Regulatory Burden; Retrospective Review Under E.O. 13563

AGENCY: United States Department of State.

ACTION: Request for information.

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SUMMARY: In accordance with Executive Order 13563 and guidance from the 
Office of Management and Budget (OMB), the Department of State (``the 
Department'') has submitted its preliminary plan to the OMB, and is 
simultaneously providing it to the public for review.

DATES: Comments on the Department's preliminary plan will be accepted 
until June 30, 2011.

ADDRESSES: Interested parties may submit comments within 60 days of the 
publication of this notice. To submit comments:
     By e-mail to [email protected], with the subject 
line: ``Response to the Plan''
     Through the Federal regulatory portal at Regulations.gov; 
search for Docket Number DOS-2011-0079.

SUPPLEMENTARY INFORMATION: The Department's ``Preliminary Plan for 
Retrospective Analysis of Existing Rules,'' dated April 25, 2011, 
follows:

I. Executive Summary of Preliminary Plan and Compliance With Executive 
Order 13563

    Executive Order 13563 recognizes the importance of maintaining a 
consistent culture of retrospective review and analysis throughout the 
executive branch. Before a rule has been tested, it is difficult to be 
certain of its consequences, including its costs and benefits. The 
Department of State's plan is designed to create a defined mechanism 
for identifying certain significant rules that are obsolete, 
unnecessary, unjustified, excessively burdensome, or counterproductive. 
Its review processes are also intended to facilitate the strengthening, 
complementing, or modernizing rules where necessary or appropriate.

II. Scope of Plan

    a. There are no sub-agencies within the Department of State for 
including in this plan.
    b. Check all the types of documents covered under this plan:

    --X--Existing regulations
    --X--Significant guidance documents
    --X--Existing information collections
    --X-- Unfinished proposed rules
    -------- Other (Specify----------------)

III. Public Access and Participation

    a. The Department of State is responsible for carrying out the 
nation's foreign policy and representing the United States abroad. It 
is essential that we take every opportunity to engage the public as we 
do this vital work on their behalf. Our era is one in which news from 
around the world is accessible to everyone on a moment-by-moment basis. 
Reflecting this new era, the Department has invested heavily in the use 
of social media tools, such as Facebook[supreg], Twitter[supreg], 
blogs, and wikis for internal collaboration and external engagement. We 
must continually be prepared to engage the public in our work, which is 
why the Department's Web site presents up-to-date information on the 
issues of the day in foreign affairs and development assistance. Our 
Open Government Web site (http://www.state.gov/open) provides a central 
location where one can follow the Department's efforts on key 
initiatives including the release of datasets at http://www.data.gov. 
In addition, the latest information on our Preliminary Plan, along with 
links to various government and other sites, is hosted at http://www.state.gov/.
    The Department of State published a notice in the Federal Register 
on March 15, 2011 seeking public comment on developing our Preliminary 
Plan. You may find the notice located at http://www.state.gov, in the 
About State tab, Rules and Information Collection link.
    b. Brief summary of public comments to notice seeking input:
    We received two comments from the public in response to our initial 
Federal Register notice.

IV. Current Agency Efforts Already Underway Independent of E.O. 13563

a. Summary of Pre-Existing Agency Efforts (Independent of E.O. 13563) 
Already Underway To Conduct Retrospective Analysis of Existing Rules

    The Department is responsible for implementing the President's 
foreign policy. The fundamental activities of diplomacy are based on 
generation of trust, and the establishment of common dialogue. Most of 
these activities involve nuance of language in creating a shared 
understanding. Today, offices in the Department focus on a wide 
spectrum of issues, including counterterrorism, nuclear arms 
proliferation, climate change, human rights, institution building, and 
international trade and finance. The complexity of these issues 
requires extensive collaboration with other U.S. Government agencies at 
overseas posts and in Washington, as well as with foreign governments, 
non-governmental organizations, and other partners.
    The Department recognizes that a key part of its mission is to 
engage the American public on the nation's foreign policy. The 
explosive growth in the Internet and social media tools has enabled 
greater citizen participation than was possible. As a result, the 
Department receives ongoing feedback on our regulations, Foreign 
Affairs Manual, public notices and information collections from the 
public at-large, DHS and other government agencies and other interested 
stakeholders. Our Exchange Visitor Program holds public meetings with 
private sector, academic and governmental program sponsors for 
providing oversight and compliance feedback.

b. What specific rules, if any, were already under consideration for 
retrospective analysis?

    See the latest publication of the Department's submission to the 
Unified Agenda of Federal Regulatory and Deregulatory Actions by going 
to Reginfo.gov at http://www.reginfo.gov/public/do/eAgendaMain. In 
addition, see Section V(c) below, for rules in the Bureau of Political-
Military Affairs that

[[Page 26652]]

were already under consideration for retrospective analysis. Revisions 
to the U.S. Munitions List were already in progress.

V. Elements of Preliminary Plan/Compliance With E.O. 13563

a. How does the agency plan to develop a strong, ongoing culture of 
retrospective analysis?

    The Department's leadership, beginning with Secretary Clinton, is 
looking forward to the opportunities presented in the E.O. initiative. 
We all recognize the importance of collaboration, engagement, 
partnerships, and accountability. The principal focus of this plan is 
to build on the work currently underway and expand our engagement with 
all of our stakeholders. We have created a Rules and Information 
Collection Web site, linked to the Department's home page. The Web site 
provides access to available information and represents an effort to 
engage the public more dynamically, solicit input, and increase 
collaboration for an on-going retrospective analysis. The URL for the 
site is: http://www.state.gov/m/a/dir/rulemaking/index.htm.
    State's mission also includes making international information 
available to the public. The Bureau of Consular Affairs provides 
detailed travel information for all countries via the Internet on 
http://www.travel.state.gov. The first quantitative assessment of 
online open government efforts recently found this site to be one of 
the highest ranking in online transparency. State.gov also scored high 
in this transparency project, which surveyed more than 36,000 citizens 
who visited 14 Federal sites during the fourth quarter of 2009.
    Through our Web site, we will encourage the public to review and to 
provide us with their comments on the best way to conduct our analysis 
on an ongoing basis. We will also actively seek views from the public 
on specific rules or Department-imposed obligations that might be 
modified or repealed. Within the Department an executive committee was 
created with responsibility for developing a preliminary plan and for 
subsequent periodic reviews. All offices responsible for writing rules 
were requested to nominate a representative who will be an active and 
responsible regulatory review member. Although our regulatory 
procedures are dynamic and have constant triggers that promote review 
and amendment to our rules and other guidance, we will conduct annual 
reviews, with the first one commencing on the anniversary after the 
completion of the initial review. In addition, each proposed rule and 
final rule will be reviewed for meeting the requirements of the E.O.

b. Prioritization. What factors and processes will the agency use in 
setting priorities?

    The Department of State is the agency with lead responsibility for 
formulating and carrying out the nation's foreign policy. The 
Department operates in Washington, DC and in nearly 200 countries, with 
over 285 locations world-wide. State's major program areas include 
diplomacy, border security, U.S. citizen's services, and foreign 
assistance. The Department's Mission Statement is to Advance freedom 
for the benefit of the American people and the international community 
by helping to build and sustain a more democratic, secure, and 
prosperous world composed of well-governed states that respond to the 
needs of their people, reduce widespread poverty, and act responsibly 
within the international system. The Department, being the diplomatic 
arm of the U.S. government, generates many narrative documents, 
treaties, and inter-governmental agreements.
    The fundamental activities of diplomacy are based on human contact 
and the establishment of common dialogue to both further ties, as well 
as resolve conflict in a peaceful manner between nations. This function 
is not the subject of rulemaking; for this reason, the Department does 
not publish many rules on a year-to-year basis.

c. Initial List of Candidate Rules for Review Over the Next Two Years

     In the Bureau of Political-Military Affairs
    PM/DDTC--Regulations Under Review
    (1) Revision of United States Munitions List, International Traffic 
in Arms Regulations (ITAR) part 121
    Each category will be the subject of a separate rule.
    [cir] Category I--Firearms, Close Assault Weapons and Combat 
Shotguns
    [cir] Category II--Guns and Armament
    [cir] Category III--Ammunition/Ordnance
    [cir] Category IV--Launch Vehicles, Guided Missiles, Ballistic 
Missiles, Rockets, Torpedoes, Bombs and Mines
    [cir] Category V--Explosives and Energetic Materials, Propellants, 
Incendiary Agents and Their Constituents
    [cir] Category VI--Vessels of War and Special Naval Equipment.
    [cir] Category VII--Tanks and Military Vehicles
    [cir] Category VIII--Aircraft and Associated Equipment
    [cir] Category IX--Military Training Equipment and Training
    [cir] Category X--Protective Personnel Equipment and Shelters
    [cir] Category XI--Military Electronics
    [cir] Category XII--Fire Control, Range Finder, Optical and 
Guidance and Control Equipment
    [cir] Category XIII--Auxiliary Military Equipment
    [cir] Category XIV--Toxicological Agents, Including Chemical 
Agents, Biological Agents, and Associated Equipment
    [cir] Category XV--Spacecraft Systems and Associated Equipment
    [cir] Category XVI--Nuclear Weapons, Design and Testing Related 
Items
    [cir] Category XVII--Classified Articles, Technical Data and 
Defense Services Not Otherwise Enumerated
    [cir] Category XVIII--Directed Energy Weapons
    [cir] Category XIX--Gas Turbine Engines
    [cir] Category XX--Submersible Vessels, Oceanographic and 
Associated Equipment
    (2) New licensing exemption for certain replacement parts and 
incorporated articles (ITAR sections 123.28 and 126.19).
    (3) New licensing exemption for transfer of defense articles to 
dual national and third-country national employees (ITAR section 
126.18).
    (4) New licensing exemption for the temporary export for personal 
use of chemical agent protective gear (ITAR section 123.17).
    (5) New electronic submission of registration payments (ITAR parts 
120, 122, and 129).
    (6) Clarification of records maintenance requirement (ITAR section 
122.5)
    (7) Discontinue submissions of form DSP-53 (ITAR section 123.4).
    (8) Change in requirements for the return of licenses (ITAR section 
123.22).
    (9) Revision of agreements procedures (ITAR part 124).
    (10) Update information on sanctioned countries (ITAR section 
126.1).
    (11) Clarify and reflect new policy for exports made by or for the 
U.S. Government (ITAR section 126.4).
    (12) Revise brokering regulations (ITAR part 129).
    (13) Revise definition of ``defense service'' (ITAR sections 120.9, 
120.38, 124.1, and 124.2).
    (14) New regulations implementing the Australia and UK defense 
cooperation treaties (ITAR parts 120, 123, 124, 126, 127, and 129).
    (15) Establishment of a general program license, which would allow 
multiple exporters to collaborate with

[[Page 26653]]

foreign partners on U.S. government programs (ITAR part 123).
    (16) Revise/establish definitions of/for ``technology,'' 
``specially designed,'' and ``public domain'' (ITAR part 120).
    (17) Revision of Missile Technology Control Regime annex (ITAR part 
121).
     In the Bureau of Resource Management
    Repeal part 8 of 22 CFR, Federal Advisory Committee Act (FACA) 
regulation for the Department of State.
    Part 8 is 35 years old and out of date. Since it was initially 
published, GSA published its FACA regulation in 41 CFR part 102-3. 
There is no reason for the Department to have a separate regulation in 
the CFR. The Department will repeal its regulation and publish a 
Foreign Affairs Manual provision that identifies which offices have 
responsibility for certain FACA functions, and any internal procedures 
to be used.
    [cir] In the Bureau of Consular Affairs
    Certain provisions will be reviewed pursuant to a request from the 
American Immigration Lawyers Association. The quotes that follow 
reflect comments from that organization:
    [cir] Part 41 of 22 CFR: Section 111(b), Issuance of Nonimmigrant 
Visas in the United States
    ``As of July 16, 2004, DOS ceased visa reissuance (visa 
revalidation) for the C, E, H, I, L, O, and P nonimmigrant visa (NIV) 
categories due to the requirement of biometrics capture for these 
categories as a result of the Enhanced Border Security and Visa Entry 
Reform Act (Pub. L. No. 107-173). See 69 Fed. Reg. 35121 (June 23, 
2004). Visa revalidation greatly enhanced and facilitated international 
business travel and should be reinstated for the above-referenced visa 
categories. Biometrics for visa revalidations could be captured by 
USCIS Application Support Centers.''
    [cir] Part 41 of 22 CFR: Section 111(d), Automatic Extension of 
Validity at Ports of Entry.
    ``This provision permits a nonimmigrant with an unexpired I-94 
Arrival/Departure Record, who is returning to the United States from a 
contiguous territory after an absence of not more than 30 days, to be 
readmitted notwithstanding the fact that the underlying nonimmigrant 
visa has expired, unless the individual has applied for (and presumably 
been denied) a nonimmigrant visa while abroad. This provision should be 
amended to permit such individuals to reenter the United States for the 
period of admission remaining on his or her I-94 card.''
    [cir] Part 41 of 22 CFR: Section 81, Fianc[eacute](e) or Spouse of 
a U.S. Citizen and Derivative Children.
    ``DOS announced that effective February 1, 2010, it would no longer 
allow a K-3 applicant to choose whether to proceed with K-3 processing 
at an NIV consulate or the I-130/immigrant visa (IV) processing at an 
IV consulate where the National Visa Center (NVC) has received approval 
notices for both the K-3 and the I-130 petitions. Given the difference 
in processing times for K-3 NIVs versus IVs at certain consular posts, 
and the resulting delay in family reunification caused by this recent 
change, this regulation should be amended to permit the applicant to 
choose between proceeding with the K-3 or IV application under these 
circumstances.''
    [cir] Part 41 of 22 CFR: Section 103(b)(3), Filing an Electronic 
NIV Application--Electronic Signature.
    ``On April 29, 2008, DOS amended the regulations relating to 
NIVapplications to offer an electronic application procedure on Form 
DS-160. See 73 Fed. Reg. 23067. The supplementary information to the 
final rule states that while a third party may assist the applicant in 
preparing the DS-160, the applicant must electronically sign the 
application him- or herself. This requires the applicant to physically 
click the ``submit'' button and does not permit an authorized attorney 
or representative to do so on the applicant's behalf. This is extremely 
burdensome for applicants who may not have a computer, access to a 
computer, or cannot sufficiently complete the electronic form. This 
provision should be amended to permit a third party to sign the 
electronic DS-160 with the express consent of the applicant.''
    [cir] Part 41 of 22 CFR: Section 105(a), NIV Supporting Documents, 
and Sec.  41.121(b): Refusal Procedure.
    ``22 CFR Sec.  41.105(a) states that ``[a]ll documents and other 
evidence presented by the alien, including briefs submitted by 
attorneys and other representatives, shall be considered by the 
consular officer.'' Though 22 CFR Sec.  41.121(b) requires a consular 
officer to ``inform the alien of the ground(s) of ineligibility'' when 
a visa is refused, the information provided in the denial letter is 
often of a very general nature. The regulations should be amended to 
require consular officers to provide a detailed statement of 
ineligibility to demonstrate that all submitted documents were reviewed 
and considered in accordance with Sec.  41.105(a).''
    [cir] Part 42 of 22 CFR: Section 65, IV Supporting Documents.
    ``Immigrant visa applicants are required to submit originals of 
essential documents such as birth certificates, marriage certificates, 
and police certificates to the NVC. The physical case file, including 
the original documents, is forwarded to the consulate, but documents 
can get lost in the file transfer process. This practice should be 
amended to permit IV applicants to submit good, clear copies of 
original documents to the NVC and to permit the applicant to bring 
original documents to the interview for inspection by the consular 
officer.
    [cir] Part 42 of 22 CFR: Section 21(b), Immigrant Visas for 
Surviving Beneficiaries/Spouses of Deceased U.S. Citizens.
    ``USCIS regulations promulgated in 2006, 8 CFR Sec.  
204.2(i)(1)(iv), allow for the automatic conversion of an I-130 
petition to an I-360 petition upon the petitioner's death in the case 
of a spouse (widow) of a U.S. citizen. Section 568(c) of the FY2010 
Appropriations Act, Pub. L. No. 111-83, included provisions permitting 
widows married less than two years to similarly self-petition, as well 
as provisions for benefits for other surviving relatives. Under INA 
Sec.  204(l), such individuals are eligible for survivor benefits if 
they can show a U.S. residence at the time of the petitioner's death, 
even where they have proceeded abroad for the sole purpose of consular 
processing. However, it appears that DOS has yet to issue guidance or 
regulations on the treatment of surviving beneficiaries, and may in 
fact be treating widow petitions as automatically revoked under 8 CFR 
Sec.  205.1(a)(3), in cases where the petitioner dies before the 
beneficiary has immigrated to the United States. We ask that 
regulations and/or guidance be implemented in this regard.''
    [cir] A proposal for the right to counsel at U.S. Embassies and 
consulates.

d. Structure and Staffing. High-Level Agency Official Responsible for 
Retrospective Review

    Name/Position Title: Patrick F. Kennedy, Under Secretary for 
Management.
    E-mail address: [email protected].

e. How does the agency plan to ensure that agency's retrospective team 
and process maintains sufficient independence from the offices 
responsible for writing and implementing regulations?

    The Department recognizes the importance of independence from the 
offices responsible for writing and implementing regulations. The Under

[[Page 26654]]

Secretary for Management is the lead Department of State official for 
overall operational implementation of the Executive Order. The 
retrospective team answers to that official, not to the rule writers. 
With respect to prospective rules, proposed drafts of such rules must 
be cleared by the Office of the Legal Adviser, the Bureau of Resource 
Management, and other offices relevant to the regulation's subject 
matter, which are typically independent of the rule writers. For 
example, rules affecting visa policy and procedures require clearance 
by the Department of Homeland Security (DHS) while various additional 
circumstances may require clearance by the Office of the Inspector 
General (OIG) and the Office of Management and Budget (OMB). These 
required clearance steps ensure objective channels of review for rule 
drafts.

f. Describe Agency Actions, If Any, To Strengthen Internal Review 
Expertise. This Could Include Training Staff, Regrouping Staff, Hiring 
New Staff, or Other Methods

    A working group was created to enforce the Department's efforts for 
making the most up-to-date information available online for the public 
and Department staff, for discussing information about the requirements 
of the E.O. and for planning the initial and on-going annual reviews. 
Looking forward, the Department's bureaus will participate in the rule 
writing process by contributing staff to the retrospective team. This 
approach will provide a rich retrospective review exchange with the 
public and will ensure that all aspects of the Department's broad 
expertise are reflected in the E.O.'s retrospective analysis of 
existing rules efforts.

g. How will the agency plan for retrospective analysis over the next 
two years, and beyond?

    This plan has been developed collaboratively under the direction of 
the Under Secretary of Management. The team is composed of leading 
bureau representatives currently active in the rule writing and rule 
review process. Because the Department regulatory procedures are 
dynamic in nature, there are triggers that promote our on-going review 
and amendment to our rules and other guidance.

h. How will the agency decide what to do with analysis?

    The Under Secretary for Management will decide, with input from the 
retrospective team and input from the public received in response to 
this notice.

i. What are the agency's plans for revising rules? How will agencies 
periodically revisit rules (e.g., though sunset provisions, during 
regular intervals)?

    The Department will review each rule and determine whether or not 
it should be revised.

j. Describe How the Agency Will Coordinate With Other Federal Agencies 
That Have Jurisdiction or Similar Interests

    As administrators of the International Traffic in Arms Regulations 
(ITAR) and rules dealing with passport/visa issues, the Department 
already coordinates with other Federal agencies when it promulgates 
rules, and will do the same if the retrospective analysis reveals 
existing rules that must be changed.

k. Will the plan be peer reviewed?

    This plan was developed by a team led by the Department's Under 
Secretary for Management, composed of employees throughout the 
Department. The public will be given an opportunity to comment on the 
plan, but it will not be peer-reviewed in the scientific sense.

VI. Components of Retrospective Cost-Benefit Analysis

a. What metrics will the agency use to evaluate regulations after they 
have been implemented? For example, will the agency use increases in 
net benefits, increases in cost effectiveness ratios, or something 
else?

    During the initial review process, each specific rule will be 
evaluated individually. The Department generally implements rules based 
on statutory requirements, recouping the cost of service, and increase 
in net benefits.

b. What steps has the agency taken to ensure that it has the data 
available with which to conduct a robust retrospective analysis?

    A working group has been formed consisting of individuals with 
expertise in rule writing, which will ensure an effective retrospective 
analysis.

c. How, if at all, will the agency incorporate experimental designs 
into retrospective analyses?

    This does not apply to the Department of State.

VII. Publishing the Agency's Plan Online

a. Will the agency publish its retrospective review plan and available 
data on its Open Government Web site (http://www.agency.gov/open).

    Yes. The point of contact will be T. J. Furlong 
([email protected]) in the Department's Bureau of Administration.

    Dated: April 27, 2011.
Patrick F. Kennedy,
Under Secretary for Management,
    Department of State.
[FR Doc. 2011-11242 Filed 5-6-11; 8:45 am]
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