[Federal Register Volume 79, Number 76 (Monday, April 21, 2014)]
[Rules and Regulations]
[Pages 22016-22018]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-09022]


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DEPARTMENT OF STATE

22 CFR Part 173

[Public Notice 8703]
RIN 1400-AD50


Availability of Public Diplomacy Program Material Within the 
United States

AGENCY: Department of State.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Department of State (``Department'') is amending its 
regulations to implement Section 1078 of the National Defense 
Authorization Act of 2013. This statutory provision, which entered into 
effect on July 2, 2013, amends previous law to allow the Department and 
the Broadcasting Board of Governors (``BBG'') to make public diplomacy 
program material available within the United States, upon request, 
following the dissemination of such material abroad, and requires the 
Department to issue regulations implementing this change.

DATES: This interim final rule will become April 21, 2014. The 
Department will accept comments on the interim final rule from the 
public until June 20, 2014.

ADDRESSES: You may submit comments by any of the following methods:
     Online: Persons with access to the Internet may view this 
rule and provide comments by going to the regulations.gov Web site at: 
http://www.regulations.gov.
     Mail (paper, disk, or CD-ROM submission): Director, Office 
of Policy and Outreach, Bureau of International Information Programs, 
U.S. Department of State, State Annex 5 (SA-5), Floor 5, 2200 C Street 
NW., Washington, DC 20522-0505.
     Email: [email protected]. You must include the RIN 
(1400-AD50) in the subject line of your message.
    Inspection of Public Comments: All comments received before the 
close of the comment period will be available for public inspection, 
including any personally identifiable or confidential business or 
financial information that is included in a comment. The Department of 
State will post all comments received before the close of the comment 
period at http://www.regulations.gov. You may search on the RIN for 
this rule, 1400-AD50.

FOR FURTHER INFORMATION CONTACT: Kim DeBlauw, Director, Office of 
Policy and Outreach, Bureau of International Information Programs, U.S. 
Department of State, SA-5, Floor 5, 2200 C Street NW., Washington, DC 
20522-0505; phone: (202) 632-9938; fax (202) 632-9901.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Section 1078 of the National Defense Authorization Act for Fiscal 
Year 2013, Public Law 112-239 (``NDAA''), which entered into effect on 
July 2, 2013, amends and clarifies, respectively, section 501 of the 
United States Information and Educational Exchange Act of 1948, as 
amended (22 U.S.C. 1461; ``the Smith-Mundt Act'') (``Section 501''), 
governing the domestic distribution of certain information about the 
United States, its people, and policies (``Program Material'') prepared 
for dissemination abroad; and section 208 of the Foreign Relations 
Authorization Act, Fiscal Years 1986 and 1987 (22 U.S.C. 1461-1a) 
(``Section 208''), governing the creation of such material for the 
purpose of influencing domestic public opinion.
    The revised Section 501 authorizes the use of public diplomacy 
funds for the preparation, dissemination and use of Program Material 
``intended for foreign audiences abroad.'' With respect to Program 
Material disseminated abroad on or after July 2, the Department and/or 
the BBG may, upon request, make such material available within the 
United States, and both the Department and BBG must issue necessary 
regulations to establish procedures to maintain such material, for 
reimbursement of reasonable costs incurred in fulfilling requests for 
such material, and to ensure that persons seeking the release of such 
material have secured and paid for necessary U.S. rights and licenses. 
(The BBG published its interim final rule on July 2, 2013, with a final 
rule published on November 8, 2013 (78 FR 67025).)
    The mission of U.S. public diplomacy is to support the achievement 
of U.S. foreign policy goals and objectives, advance national 
interests, and enhance national security by informing and influencing 
foreign publics, and by expanding and strengthening the relationship 
between the people and Government of the United States and citizens of 
the rest of the world. Public diplomacy outreach includes 
communications with foreign audiences abroad through Program Material 
prepared with, and efforts supported by, funds appropriated or 
otherwise made available for this purpose. Prior to the 2013 NDAA, such 
material could not be disseminated within the United States but could 
be available at the Department following its release abroad, upon 
request, for examination only to limited categories of requesters 
(i.e., representatives of U.S. press associations, newspapers, 
magazines; research students and scholars; Members of Congress).

Regulatory Analysis

Administrative Procedure Act

    The Department is of the opinion that this rulemaking is exempt 
from the notice-and-comment provisions of 5 U.S.C. 553 under the good 
cause exception of 5 U.S.C. 553(b). There is good cause under 5 U.S.C. 
553(b)(B) and (d)(3) to have this rule effective at the time of 
publication. Because one of the purposes of this rule and the law 
underlying this rule is to allow information dissemination outside of 
the Freedom of Information Act for Program Material, and because of the 
already-past effective date of the law, the intent of the law would be 
frustrated if the Department could not begin implementing this rule and 
responding to domestic requests for Program Material as soon as 
possible. Accordingly, the Department finds that normal public 
rulemaking procedures are impracticable and unnecessary, and that there 
is good cause under 5 U.S.C. 553(b)(B) and (d)(3) to exempt this rule 
from public rulemaking procedures and to implement this rule upon 
publication. Without prejudice to the Department's determination that 
there is good cause to exempt this rule from public rulemaking 
procedures, in the interests of transparency and public participation, 
the Department is publishing this rule as an interim final rule with a 
60-day provision for public comment.
    Furthermore, because this is a substantive rule that relieves 
restrictions imposed by previous versions of 22 U.S.C. 1461 and 1461-
1a, the Department may implement this rule at the time of publication 
under 5 U.S.C. 553(d)(1). This rule does not require or prompt the 
public to take any action; rather, it functions to relieve the 
prohibition that prevented the Department from responding to requests

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for Program Material from the U.S. public, U.S. media entities, or 
other U.S. organizations. This rule benefits the public, media, and 
other organizations by allowing them to request and access the 
Department's Program Material, which previously could not be 
disseminated within the United States.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rulemaking is not a major rule as defined by 5 U.S.C. 804 for 
the purposes of Congressional review of agency rulemaking under the 
Small Business Regulatory Enforcement Fairness Act of 1996. This 
rulemaking 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 
in domestic and export markets.

Unfunded Mandates Reform Act of 1995

    This rulemaking will not result in the expenditure by State, local 
and tribal governments, in the aggregate, or by the private sector, of 
$100 million in any year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
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.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    The Department hereby certifies that these regulatory changes will 
not have a significant impact upon small businesses.

Executive Order 13563 and Executive Order 12866

    The Department is publishing this rulemaking in response to a 
statutory requirement that will make more information available to the 
public; therefore, the benefits of the rulemaking outweigh any costs. 
The Department does not consider this rulemaking to be a ``significant 
regulatory action'' under Executive Order 12866, section 3(f), 
Regulatory Planning and Review, as amended by Executive Order 13563. 
The Department has reviewed this rulemaking to ensure its consistency 
with the regulatory philosophy and principles set forth in the 
Executive Orders.

Executive Order 12988

    The Department has reviewed this rulemaking in light of sections 
3(a) and (b)(2) of Executive Order 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

Executive Orders 12372 and 13132

    This rulemaking will not have a substantial direct effect 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. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this rulemaking does 
not have sufficient federalism implications to require consultations or 
warrant the preparation of a federalism summary impact statement. 
Executive Order 12372, regarding intergovernmental consultation on 
federal programs and activities, does not apply to this rulemaking.

Paperwork Reduction Act

    This rulemaking contains no new information collections subject to 
the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 173

    Broadcasting, Communications, Education, Foreign relations, Freedom 
of information, Information, Publications, Records, Radio.

    Accordingly, 22 CFR chapter I, subchapter R, is amended by adding a 
new part 173 as follows:

PART 173--AVAILABILITY OF PUBLIC DIPLOMACY PROGRAM MATERIAL IN THE 
UNITED STATES

Sec.
173.1 Purpose and scope.
173.2 Definitions.
173.3 Availability of program material.
173.4 Terms of use and other compliance.
173.5 Fees.

    Authority:  the United States Information and Educational 
Exchange Act of 1948, as amended (22 U.S.C. 1461, et seq.); Section 
1078 of the National Defense Authorization Act for Fiscal Year 2013, 
Pub. L. 112-239.


Sec.  173.1  Purpose and scope.

    This part contains the rules that the Department follows for 
responding to requests for the release within the United States of 
public diplomacy program material generated pursuant to the U.S. 
Information and Educational Exchange Act of 1948, as amended (22 U.S.C. 
1431, et seq.; ``the Smith-Mundt Act''). It is the Department's policy 
to make its program material available on its public Web site or via 
third-party platforms whenever doing so is consistent with the 
Department's mission and all statutory authorities, prohibitions, 
contractual obligations, principles, and standards. Requests for 
program material that is not available on the Department's public Web 
site or via third-party platforms must be submitted under the Freedom 
of Information Act (the ``FOIA'') pursuant to the FOIA provisions of 22 
CFR part 171, subpart B.


Sec.  173.2  Definitions.

    For the purposes of this part,
    (a) Program material shall mean information about the United 
States, its people and policies, intended for foreign audiences abroad, 
that the Department prepares or assists in preparing using public 
diplomacy funds and disseminates to foreign audiences outside of the 
United States pursuant to the Smith-Mundt Act and Section 208 of the 
Foreign Relations Authorization Act, Fiscal Years 1986 and 1987 (22 
U.S.C. 1461-1a), as amended. Program Material includes, but is not 
limited to, electronic journals, pamphlets, books, maps, posters, 
videos, presentations, photos, games, curricula and other teaching 
materials, and certain social media and web-based interactive 
technology content produced in Washington, DC, as well as such 
materials and content produced at U.S. embassies abroad.
    (b) Request shall mean any attempt to access the Department's 
Program Material, including through the Department's public Web sites 
and third-party platforms, or through a direct inquiry to a Department 
official in connection with a speech or other engagement.
    (c) Requester shall mean any private person or entity that requests 
that the Department make Program Material available within the United 
States.


Sec.  173.3  Availability of program material.

    (a) The Department makes Program Material available to Requesters 
electronically through Department Web sites and/or various third-party 
platforms, where such material has been disseminated to audiences 
abroad. Once Program Material is published, it remains available in 
digital format until removed or archived by the Department at its 
discretion (see paragraph (c) of this

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section). For access to such Program Material, Requesters may visit 
www.state.gov/r.
    (b) As a general matter, Program Material published both 
electronically and in hard copy will be made available electronically 
through Department Web sites and/or various third-party platforms, 
although the Department reserves the right to make Program Material 
available in hard copy at its sole discretion. To the extent a 
Requester seeks Program Material that is not made available online 
through Department Web sites or third-party platforms, such material 
must be requested under the FOIA pursuant to the procedures outlined at 
22 CFR part 171, Subpart B.
    (c) The Department will remove Program Material from Department and 
third-party Web sites when it deems such material no longer relevant to 
the Department's public diplomacy mission. The Department will also 
remove Program Material when required by licensing agreements with 
third-party copyright holders. To the extent a Requester seeks Program 
Material that has been removed for whatever reason, such material must 
be requested under the FOIA pursuant to the procedures outlined at 22 
CFR part 171, Subpart B.
    (d) Once Program Material has been removed from the Department's 
Web site or third-party platforms, a determination will be made as to 
whether it is a permanent Department record under the Department's 
applicable Records Disposition Schedule (``RDS''). Permanent records 
will be transferred in their entirety to the National Archives and 
Records Administration (``NARA'') according to the RDS; see 36 CFR 
1256.98 for information about how to request Department Program 
Material that has been transferred to NARA. Material designated as 
``temporary'' under the applicable RDS will be destroyed once it has 
been removed from the Department or third-party sites.


Sec.  173.4  Terms of use and other compliance.

    Requesters and users of Department Web sites, or third-party Web 
sites containing Program Material, are responsible for complying with 
the Terms of Use applicable to any such site. Requesters are also 
solely responsible for complying with any applicable statutes governing 
the use of such material and securing appropriate licenses for use of 
such material, if required.


Sec.  173.5  Fees.

    (a) The Department will make Program Material available online 
(i.e., in digital format) at no cost.
    (b) The Department may collect a fee for reimbursement of the 
reasonable costs incurred to fulfill requests for Program Material not 
available online. Such requests, including fees applicable thereto, 
shall be governed by part 171, subpart B of this subchapter.

    Dated April 14, 2014.
Richard Stengel,
Under Secretary for Public Diplomacy and Public Affairs.
[FR Doc. 2014-09022 Filed 4-18-14; 8:45 am]
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