Board of Appellate Review; Review of Loss of Nationality, 41256-41258 [E8-16247]

Agencies

• DEPARTMENT OF STATE

[Federal Register Volume 73, Number 139 (Friday, July 18, 2008)]
[Rules and Regulations]
[Pages 41256-41258]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-16247]


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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superseded or made obsolete for several years, and in large part 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: https://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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