Repeal of Regulation Entitled Firewall and Highest Standards of Professional Journalism, 79427-79432 [2020-24736]

Agencies

• UNITED STATES AGENCY FOR GLOBAL MEDIA

[Federal Register Volume 85, Number 238 (Thursday, December 10, 2020)]
[Rules and Regulations]
[Pages 79427-79432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-24736]


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UNITED STATES AGENCY FOR GLOBAL MEDIA

22 CFR Chapter V

RIN 3112-AA03


Repeal of Regulation Entitled Firewall and Highest Standards of 
Professional Journalism

AGENCY: United States Agency for Global Media (formerly Broadcasting 
Board of Governors).

ACTION: Final rule.

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SUMMARY: The United States Agency for Global Media (formerly known as 
the Broadcasting Board of Governors) is repealing the regulation 
entitled ``Firewall and Highest Standards of Professional Journalism'' 
published on June 15, 2020.

DATES: This rule is effective without actual notice as of December 10, 
2020. For the purposes of enforcement, actual notice will be used as of 
October 26, 2020.

FOR FURTHER INFORMATION CONTACT: Daniel Rosenholtz at 
[email protected] or (202) 920-2342.

SUPPLEMENTARY INFORMATION:

Background

    The United States Agency for Global Media (``USAGM'') is an agency 
of the Federal Government that exercises authority over non-military 
United States government broadcasting. USAGM, which was created by the 
International Broadcasting Act of 1994 under a different name, 
currently operates five networks--Voice of America (``VOA''), the 
Office of Cuba Broadcasting (``OCB''), Radio Free Europe/Radio Liberty 
(``RFE/RL''), Radio Free Asia (``RFA'') and the Middle East 
Broadcasting Networks (``MBN'') (collectively the ``USAGM Networks'' or 
``Networks'').
    On June 4, 2020, the Broadcasting Board of Governors (``BBG''), 
USAGM's leadership at the time, promulgated a regulation governing 
internal agency operations, Firewall and Highest Standards of 
Professional Journalism, 85 FR 36150 (June 15, 2020) (codified at 22 
CFR part 531) (the ``Regulation'') that purported to implement section 
305(b) of International Broadcasting Act (``IBA'') (22 U.S.C. 6204(b)).
    The Regulation was promulgated only when it became apparent that 
the leadership of USAGM was about to change via Senate confirmation of 
a USAGM Chief Executive Officer (``CEO''). See Firewall and Highest 
Standards of Professional Journalism, 85 FR at 36150 (expressly 
identifying the pending end of the Board's tenure as the motivating 
factor for the timing and issuance of the Regulation). Senate 
confirmation of a CEO caused the BBG to dissolve, and transferred all 
of its powers to the CEO. See 22 U.S.C. 6203(b)(1).
    At its core, the Regulation asserts that ``a firewall exists 
between anybody involved with any aspect of journalism (e.g., the 
creation, editing, reporting, distributing, etc., of content) and 
everyone else in the organization,'' and that this former Board-
preferred policy is violated when anyone outside of the ``newsroom'' 
``attempts to direct, pressure, coerce, threaten, interfere with, or 
otherwise impermissibly influence any of the USAGM Networks, including 
their leadership, officers, employees, or staff, in the performance of 
their journalistic and broadcasting duties and activities.'' 22 CFR 
531.3(b), (c). This regulatory instruction by its terms suggests USAGM 
is a typical broadcasting organization, which squarely contradicts 
USAGM's statutory mandate to promote particular United States values 
and interests. See, e.g., 22 U.S.C. 6202(a)(1)-(2) (mandating that 
United States international broadcasting be consistent with United 
States foreign policy objectives, international telecommunications 
policies, and United States treaty obligations); id. Section 6202(a)(8) 
(mandating the promotion of ``respect for human rights, including 
freedom of religion''). Unlike private broadcasting organizations, the 
mission of USAGM from its statutory origins has been to support United 
States foreign policy goals by furthering American values and 
facilitating the dissemination of objectively accurate factual news and 
information overseas. See United States Information and Educational 
Exchange Act of 1948, Public Law 80-402, section 2, 62 Stat. 6, 6 
(1948); see also, e.g., id. section 6201(2) (noting that the values 
furthered by the agency such as the ``[o]pen communication of 
information and ideas among the peoples of the world,'' further 
international peace and stability, and serve ``the interests of the 
United States''); id. section 6202(a)(1), (3) (requiring United States 
broadcasting to ``be consistent with the broad foreign policy 
objectives of the United States'' and with United States treaty 
obligations); id. section 6202(b)(1), (3) (mandating that United States 
international broadcasting include ``news which is consistently 
reliable and authoritative, accurate, objective, and comprehensive'' 
and constitutes a ``clear and effective presentation of the policies of 
the United States Government and responsible discussion and opinion on 
those policies''); id. section 6202(b)(4) (requiring United States 
international broadcasting to include ``the capability to provide a 
surge capacity to support United States foreign policy objectives 
during crises abroad'').
    Upon taking office, the CEO directed a review of the Regulation and 
sought external legal counsel.
    The Regulation is hereby repealed.

I. There Is Tension Between the Regulation on the One Hand, and USAGM's 
Statutory Mission and Article II of the Constitution on the Other

A. USAGM's Statutory Mission

    Since United States international broadcasting was first codified 
in 1948, the statutory objective was--and still is--``to enable the 
Government of the United States to promote a better understanding of 
the United States in other countries . . . [including by] an 
information service to disseminate abroad information about the United 
States, its people, and policies . . . .'' United States Information 
and Educational Exchange Act of 1948, Public Law 80-402, section 2, 62 
Stat. 6, 6 (1948) (codified at 22 U.S.C. 1431).
    When VOA was codified in statute in 1976, Congress made clear that 
VOA's purpose was to serve American interests abroad. VOA was to 
``communicat[e] directly with the peoples of the world by radio'' to 
serve the ``long-range interests of the United States'' as governed by 
enumerated principles which have been codified in the VOA Charter. 
``VOA will serve as a consistently reliable and authoritative source of 
news [that is] accurate, objective, and comprehensive''; ``represent 
America . . . and . . . present a balanced and comprehensive projection 
of significant American thought''; and ``present the policies of the 
United States clearly and effectively, and . . . present responsible 
discussion and opinion on these policies.'' Foreign Relations 
Authorization Act, FY 1977, Public Law 94-350, section 206, 90 Stat. 
823, 831-32 (1976).
    The current statutory mission of USAGM is to serve United States 
interests through Government

[[Page 79428]]

sponsored news abroad. Under the IBA, United States international 
broadcasting must:
     ``[B]e consistent with the broad foreign policy objectives 
of the United States.'' Id. section 6202(a)(1).
     ``[B]e consistent with the international 
telecommunications policies and treaty obligations of the United 
States.'' Id. section 6202(a)(2).
     ``[I]nclude a balanced and comprehensive projection of 
United States thought and institutions, reflecting the diversity of 
United States culture and society.'' Id. section 6202(b)(2).
     ``[I]nclude clear and effective presentation of the 
policies of the United States Government and responsible discussion and 
opinion on those policies, including editorials, broadcast by the Voice 
of America, which present the views of the United States Government.'' 
Id. section 6202(b)(3).
     Maintain ``the capability to provide a surge capacity to 
support United States foreign policy objectives during crises abroad.'' 
Id. section 6202(b)(4).
     ``[P]romote respect for human rights, including freedom of 
religion.'' Id. section 6202(a)(8). VOA is further required to 
``present a balanced and comprehensive projection of significant 
American thought and institutions'' (id. section 6202(c)(2)) and to 
``present the polices of the United States clearly and effectively, and 
. . . also present responsible discussion and opinion on these 
policies.'' (Id. section 6202(c)(3)). These tasks are seen as essential 
to serving ``[t]he long range interests of the United States.'' Id. 
section 6202(c).\1\
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    \1\ See also 22 U.S.C. 6209(b)(1) (if CEO consolidates grantees 
he must require the consolidated grantee to ``counter state-
sponsored propaganda which undermines the national security or 
foreign policy interests of the United States and its allies''); id. 
section 6201(2) (statutory purpose of IBA to ``[o]pen communication 
of information and ideas among the peoples of the world''); Foreign 
Relations Authorization Act, Fiscal Years 1988 and 1989, Public Law 
100-204, Title IV, section 403, 101 Stat. 1381 (Dec. 22, 1987) 
(``The Congress finds that the overriding national security aspects 
of the $1,300,000,000 facilities modernization program of the Voice 
of America require the assurance of uninterrupted logistic support 
under all circumstances for the program. Therefore, it is in the 
best interests of the United States to provide a preference for 
United States contractors bidding on the projects of this 
program.'').
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    Because of this special mission, USAGM and its Networks do not 
function as a traditional news or media agency and were never intended 
to do so. See, e.g., id. section 6202(a)(3) (prohibiting United States 
international broadcasting from ``duplicat[ing] the activities of 
private United States broadcasters''); see also id. section 6202(a)(4) 
(prohibiting United States international broadcasting from 
``duplicat[ing] the activities of government supported broadcasting 
entities of other democratic nations''). By design, their purpose and 
focus is foreign relations and the promotion of American objectives--
not simply presenting news or engaging in journalistic expression. For 
example, the Networks are to articulate the American perspective while 
countering international views that undermine American values and 
freedom, or that might aid our enemies' messaging, by providing a 
``clear and effective presentation of the policies of the United States 
Government and responsible discussion and opinion on those policies.'' 
Id. section 6202(b)(3). They also counter soft-power through news in 
countries without a free media by presenting ``a variety of opinions 
and voices from within particular nations and regions prevented by 
censorship or repression from speaking to their fellow countrymen.'' 
Id. section 6202(b)(7).
    By law, the USAGM networks must ``not duplicate the activities of 
private United States broadcasters'' (id. section 6202(a)(3)) or ``the 
activities of government supported broadcasting entities of other 
democratic nations.'' (Id. section 6202(a)(4)). Under the Smith-Mundt 
Act of 1948 (as amended) USAGM may broadcast only news ``intended for 
foreign audiences abroad.'' Id. section 1461(a) (emphasis added). And 
``[n]o funds authorized to be appropriated to the Department of State 
or the Broadcasting Board of Governors shall be used to influence 
public opinion in the United States.'' Id. section 1461-1a(a).
    The IBA grants the CEO a number of broad authorities to carry out 
these weighty responsibilities to promote American interests abroad.\2\ 
In particular the CEO has express power:
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    \2\ The consolidation from Board to CEO was the result of a 
widespread view that USAGM's predecessor agency needed reform that 
could only come from the energy of a single leader. See, e.g., 
Statement on Signing the National Defense Authorization Act for 
Fiscal Year 2017, at 3 (Dec. 23, 2016) (noting strong support for 
needed ``structural reform'' of USAGM and ``empowerment'' of the 
USAGM CEO); Markup on H.R. 1853, H.R. 2100, H.R. 2323, H. Res. 213, 
H. Res. 235: H. Comm. on Foreign Affairs, 114th Cong. 104-05 (May 
21, 2015) (statement of Ranking Member Elliot L. Engel) (describing 
predecessor bill as a ``much-needed overhaul''); Terrorist Attack in 
Benghazi: The Secretary of State's View: Hearing before the H. Comm. 
on Foreign Affairs, 113th Cong. 25-26 (Jan. 23, 2013) (statement of 
Hillary Rodham Clinton, Secretary of State) (describing USAGM's 
abilities to project soft power as ``practically defunct'').
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     ``To direct and supervise all broadcasting activities 
conducted pursuant to this title.'' Id. section 6204(a)(1).
     ``To review and evaluate the mission and operation of, and 
to assess the quality, effectiveness, and professional integrity, of 
all such activities within the context of the broad foreign policy 
objectives of the United States.'' Id. section 6204(a)(2).
     ``To ensure that United States international broadcasting 
is conducted in accordance with the standards and principles'' set 
forth in the IBA. Id. section 6204(a)(3).
     ``To review, evaluate, and determine, at least annually, 
after consultation with the Secretary of State, the addition or 
deletion of language services.'' Id. section 6204(a)(4).
     To take a number of different expansive personnel, 
materiel, and contracting actions. Id. section 6204(a)(8), (10)-(11), 
(15)-(19).
     ``To redirect or reprogram funds within the scope of any 
grant or cooperative agreement, or between grantees, as necessary.'' 
Id. section 6204(a)(21).
     To appoint the Officers and Directors of the USAGM 
Networks who serve at his pleasure. Id. section 6209(d).
    The CEO also ``shall regularly consult with and seek from the 
Secretary of State guidance on foreign policy issues.'' Id. section 
6209b.

B. Article II of the United States Constitution

    Article II imbues the statutory scheme charging USAGM to promote 
American interests abroad. USAGM, which is now overseen by a single 
CEO, is not an ``independent establishment.'' \3\ Its CEO is 
``appointed by the President, by and with the advice and consent of the 
Senate.'' 22 U.S.C. 6203(b)(1). The CEO thus has both the power and the 
duty to execute the applicable laws of the United States under the 
President's supervision. See, e.g., Myers v. United States, 272 U.S. 
52, 135 (1926); Statute Limiting the President's Authority to Supervise 
the Director of the Center for Disease Control in the Distribution of 
an AIDS Pamphlet, 12 Op. OLC 47, 56-58 (Mar. 11, 1988); The Jewels of 
the Princess Orange, 2 U.S. Op. Att'y Gen. 482, 486-87 (Dec. 31, 1831). 
Executive power is at its zenith in the realm of foreign affairs.
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    \3\ It has long been the case, as the Supreme Court recently 
reaffirmed, just last term, that ``[t]he entire executive Power 
belongs to the President alone. . . . [L]esser officers must remain 
accountable to the President, whose authority they wield.'' Seila 
Law LLC v. CFPB, 140 S.Ct. 2183, 2197 (2020).
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    ``[T]he President alone has the power to speak or listen as a 
representative of

[[Page 79429]]

the nation.'' United States v. Curtiss-Wright Export Corp., 299 U.S. 
304, 319 (1936). Therefore, the President is the ```sole organ of the 
federal government in the field of international relations''' (Id. at 
320 (internal citation omitted)) and the President has ``unique 
responsibility'' for the conduct of ``foreign . . . affairs.'' (Sale v. 
Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993)). Because USAGM's 
mandate is to further the foreign policy interests of the United 
States, the President's appointee necessarily must have the authority 
to participate in the substance of advancing that mission.\4\
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    \4\ See also Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982) 
(conducting foreign affairs a ``central'' ``domain'' of the 
President); Dep't of Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting 
Haig v. Agee, 453 U.S. 280, 293-94 (1981)); Ludecke v. Watkins, 335 
U.S. 160, 173 (1948) (holding that the President is the nation's 
``guiding organ in the conduct of our foreign affairs'').
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C. The Regulation

    The Regulation begins by asserting that USAGM is ``an independent 
establishment of the federal government,'' (Firewall and Highest 
Standards of Professional Journalism, 85 FR 36150) and claims that 
USAGM networks necessarily enjoy full editorial independence in order 
to maintain their ``professional independence and integrity,'' per 
section 305(b) of the IBA. This statutorily mandated firewall protects 
the independence of the networks by insulating their editorial 
decisions from interference from those outside of the network, or from 
impermissible considerations, as set forth in 22 CFR 531.1(a). Section 
305(b) of the IBA, however, provides only that ``[t]he Secretary of 
State and the Chief Executive Officer, in carrying out their functions, 
shall respect the professional independence and integrity of the Board, 
its broadcasting services, and the grantees of the Board.'' 22 U.S.C. 
6204(b).
    The Regulation then posits that the ``newsroom'' of each USAGM 
Network is ``fully insulated'' from what it calls ``any political or 
other external pressures or processes that would be inconsistent with 
the highest standards of professional journalism.'' Id. section 
531.2(b) (emphasis added). At its core, the Regulation asserts it is 
violated when any person within the Executive Branch or a Network, but 
outside the newsroom, attempts to direct, pressure, coerce, threaten, 
interfere with, or otherwise impermissibly influence any of the USAGM 
networks, including their leadership, officers, employees, or staff, in 
the performance of their journalistic and broadcasting duties and 
activities. It is also violated when someone inside the newsroom acts 
in furtherance of or pursuant to such impermissible influence. Id. 
section 531.3(c). The Regulation purports to bind not only USAGM 
officials, but the entire Executive Branch--up to and including the 
President of the United States. The Regulation's only exception to this 
general edict is that the firewall does not prevent a USAGM CEO or 
Board from undertaking the same type of direction and oversight that 
those in equivalent leadership positions in an organization overseeing 
other reputable news organizations may provide, in a manner consistent 
with the highest standards of professional journalism. Id. section 
531.3(e)(3).

D. The Regulation Is in Tension With USAGM's Statutory Mandate and 
Article II

    There is a significant tension between the Regulation on the one 
hand, and USAGM's statutory mandate and the CEO's responsibilities and 
powers under statute and Article II on the other.
    The Regulation relies solely on section 305(b) of the IBA for its 
conclusion that ``USAGM networks necessarily enjoy full editorial 
independence in order to maintain their `professional independence and 
integrity.' '' Id. Sec.  531.1(a).
    But section 305(b) clearly does not use the terms ``respect'' or 
``independence'' in anything approaching the concept of structural, 
managerial, or policy independence, or the manner in which those terms 
may apply to any given private news network. Rather, the statutory 
reference to ``professional independence'' requires the preservation of 
professionalism and technical excellence. See, e.g., Oxford English 
Dictionary (``professional'': ``[c]haracteristic of or suitable for a 
professional person''; ``[t]hat has or displays the skill, knowledge, 
experience, standards, or expertise of a professional; competent, 
efficient''; ``[t]hat has knowledge of the theoretical or scientific 
parts of a trade or occupation, as distinct from its practical or 
mechanical aspects''; ``that raises a trade to a learned profession''); 
see also, e.g., 22 U.S.C. 6202(a)(5) (requiring United States 
international broadcasting to ``be conducted in accordance with the 
highest professional standards of broadcast journalism''); Id. section 
6202(a)(6)-(7) (requiring broadcasting to ``be based on reliable 
information'' and ``be designed so as to effectively reach a 
significant audience''); Id. section 6202(b) (mandating, e.g., the 
provision of ``news which is consistently reliable and authoritative, 
accurate, objective, and comprehensive,'' presentations that are 
``clear and effective,'' and ``reliable research capacity'').
    By its terms, the IBA's reference to ``professional independence'' 
is distinct from other statutory provisions purporting to establish 
entities independent from managerial or policy control or significant 
executive supervision. The phrase ``professional independence'' appears 
nowhere else in the United States Code. Statutory uses of the term 
``independen[t]'' reference separate or freestanding entities, in 
contrast, and typically employ just the standalone adjective 
``independent'' or ``independence.'' See, e.g., 5 U.S.C. 105 (``For the 
purpose of this title, `Executive agency' means an Executive 
department, a Government corporation, and an independent 
establishment.'' (emphasis added)); 24 U.S.C. 30 (``head of the 
department or independent agency'' (emphasis added)); 42 U.S.C. 1962b-
1(b) (``each Federal department or independent agency'' (emphasis 
added)); 44 U.S.C. 1907 (referencing ``executive departments'' and 
``independent agencies'').
    Further, as discussed, USAGM Networks are statutorily prohibited 
from competing with private ``United States broadcasters'' and other 
``state supported broadcasting'' from democratic nations, and they 
cannot seek to influence public opinion in the United States. 22 U.S.C. 
6202(a)(3)-(4); id. section 1461-1a(a). Conversely, the USAGM Networks 
are required to program specific content to meet ``[the] needs which 
remain unserved by the totality of media voices available to the people 
of certain nations,'' (Id. section 6202(b)(5)) and ``[i]nclude clear 
and effective presentation of the policies of the United States 
Government and responsible discussion and opinion on those policies.'' 
(Id. section 6202(b)(3)).
    The IBA provides that the CEO must, among other things, ``direct 
and supervise all [USAGM] broadcasting activities''; ``review and 
evaluate the mission and operation of, and to assess the quality, 
effectiveness, and professional integrity of, all such activities 
within the context of the broad foreign policy objectives of the United 
States''; and ``ensure that United States international broadcasting is 
conducted in accordance with [certain] standards and principles,'' 
including that such broadcasting ``shall . . . be consistent with the 
broad foreign policy objectives of the United States,'' ``be consistent 
with the international telecommunications policies and treaty 
obligations of the United States,'' and ``be conducted in accordance 
with the highest professional standards of

[[Page 79430]]

broadcast journalism.'' Id. section 6202(a)(1)-(2), (5), 6204(a)(1)-
(3). The IBA does not prohibit USAGM or the CEO from supervising the 
broadcasting networks; to the contrary, the IBA requires that the CEO 
oversee those networks for consistency with United States foreign 
policy and international treaty obligations, as well as the 
journalistic integrity of their operations. It is difficult to see how 
the CEO could fully discharge these statutory responsibilities under 
the Regulation, which prohibits him from ``direct[ing] . . . USAGM 
networks . . . in the performance of their journalistic and 
broadcasting duties and activities.'' 22 CFR 531.3(c).
    Finally, nothing in the IBA purports to authorize USAGM Networks to 
engage in broadcasting activities that would impair the President's 
conduct of foreign affairs as ```the sole organ of the federal 
government in the field of international relations.''' Curtiss-Wright 
Exp. Corp., 299 U.S. at 320 (internal citation omitted); See also Id. 
22 U.S.C. 6202(a)(1) (requiring United States International 
Broadcasting to be ``consistent with the broad foreign policy 
objectives of the United States''); 22 U.S.C. 6209b (The CEO also 
``shall regularly consult with and seek from the Secretary of State 
guidance on foreign policy issues.'').
    But the Regulation's blanket prohibition on Executive Branch 
activities that affect editorial decision making--seemingly in all 
circumstances and for any reason--could improperly cabin the Executive 
Branch's ability to protect and advance its interests in foreign 
affairs, as necessary.
    A proper analysis of section 305(b) should have taken into account 
the relationship between that provision and USAGM's statutory 
responsibility to oversee United States international broadcasting 
networks, as well as the President's authority to conduct foreign 
affairs. The Regulation failed to consider these relevant factors in 
its analysis, and instead incorrectly read section 305(b) in isolation 
to be a bar to effective supervision.
* * * * *
    A few examples, including those observed from USAGM's experience 
operating under the Regulation, illustrate that the Regulation is 
unworkable because it undermines the ability of USAGM to discharge its 
core statutorily mandated functions.
    1. USAGM's statutory mandate and Article II necessarily require 
USAGM--at times--to control content. Yet directly mandating particular 
content would seem within the Regulation's prohibition.
    This limitation creates tension with USAGM's proper role in those 
scenarios that, under USAGM's mandate, would require it to regulate 
content. Determining USAGM's proper role and assessing USAGM's ability 
to carry out its statutory mandate under the current Regulation can be 
unclear and generates operational uncertainty.
    For example, could the CEO direct the newsroom to withhold a story 
that posed a clear and present danger to national security or to the 
survival of United States military personnel? Arguably, the Regulation 
prohibits such direction. See, e.g., 22 CFR 531.3(b) (``[A] firewall 
exists between anybody involved with any aspect of journalism (e.g., 
the creation, editing, reporting, distributing, etc., of content) and 
everyone else in the organization.'').\5\ VOA has previously taken the 
position that the aspect of the ``firewall'' prohibiting control over 
content is absolute. See Steven Springer, Transcript of Editorial 
Firewall Session, at 5 (May 17, 2018) (``Really can't get any more 
basic than that. Basically it's saying no one from the US government, 
no agency or official, can reach in and interfere with our work. Very 
plain and simple.''). That absolute position collides with USAGM's 
statutory mission and Article II. But so long as the Regulation exists, 
it creates operational uncertainty that has slowed down or otherwise 
interfered with necessary action.
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    \5\ The assertion that the Regulation bars any restriction of 
content is particularly striking because throughout American 
history, the private press have at times acceded to requests from 
the Executive Branch to refrain from the publication of certain 
material that, if otherwise distributed, would have imperiled United 
States national interests. For example, during armed conflict, 
newspapers and other outlets, complying with government appeals, 
have withheld information involving troop positions as well as 
imminent tactics, protecting the lives of American men and women in 
uniform. See, e.g., Gabriel Schoenfeld, Necessary Secrets: National 
Security, the Media, and the Rule of Law (New York, New York: W.W. 
Norton 2010); Daniel Smyth, Avoiding Bloodshed? US Journalists and 
Censorship in Wartime, War & Society. Vol. 32, Iss. 1. 2013. At 
other times, the reason for refraining from the publication of 
specific content has arisen from concerns involving America's 
security more broadly. For example, the New York Times complied with 
government requests in 2004 by holding an article about the National 
Security Agency's Terrorist Surveillance Program for more than a 
year due to a ``convincing national security argument.'' Byron 
Calame, More on the Eavesdropping Article, The Public Editor's 
Journal, New York Times (Dec. 31, 2005).
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    2. Absent the ability to enforce basic standards of conduct through 
investigations and discipline, USAGM cannot effectively discharge its 
statutory duties, such as to ``direct and supervise all broadcasting 
activities,'' ``review and evaluate the mission and operation of, and 
to assess the quality, effectiveness, and professional integrity'' of 
USAGM Network broadcasts, and ``ensure that United States international 
broadcasting is conducted in accordance with the standards and 
principles'' set forth in the IBA governing journalistic standards. 22 
U.S.C. 6204(a)(1)-(3).
    For example, some argue that the Regulation bars the CEO from 
promulgating policies governing employee conduct, such as the existing 
USAGM Social Media Policy, USAGM, V-A BAM 530-Social Media Policy (July 
8, 2019). See, e.g., Elliot Engel, Engel Statement on USAGM Officials 
Breaching the ``Firewall'' and Targeting VOA Journalist (Oct. 5, 2020). 
But this creates an unworkable situation because the CEO is required to 
``ensure'' adherence to broadcasting standards and to ``direct'' and 
``supervise'' all broadcasting activities. 22 U.S.C. 6204(a)(1), (3). 
Personal social media posts by journalists can affect their 
``[f]airness, objectivity & balance'' (VOA Best Practices Guide, at 8-9 
(June 2020)) which in turn are components of ``the highest professional 
standards of broadcast journalism.'' 22 U.S.C. 6202(a)(5); see also The 
New York Times, Social Media Policy (Oct. 13, 2017). Such posts can 
undermine all USAGM Networks and accordingly justify heightened 
governmental restrictions on reporters' conduct. See Navab-Safvavi v. 
Glassman, 637 F.3d 311, 317 (D.C. Cir. 2011) (regulating private speech 
of VOA journalists necessary to achieve particularly strong 
governmental interest in presenting a clear message on United States 
foreign policy).
    For there to be effective management of the USAGM Networks (or 
simply consistency in this area), the CEO must have authority to set 
and enforce such policies. But again, the Regulation injects a great 
deal of ambiguity and confusion. This ambiguity stalls, and sometimes 
stops, important action critical to USAGM Network operations. This, 
too, counsels for repeal of the Regulation.
    3. Similarly, the CEO has express statutory authority ``[t]o 
redirect or reprogram funds within the scope of any grant or 
cooperative agreement, or between grantees, as necessary.'' 22 U.S.C. 
6204(a)(21). But making the decision to drastically reduce or increase 
a grantee's budget based on an acute, critical foreign policy need of 
the United States could arguably ``influence'' ``journalistic and 
broadcasting duties and activities,'' as prohibited by the Regulation. 
22 CFR 531.3(c). And there is at least a question about whether such 
action falls under

[[Page 79431]]

the Regulation's general exception. If it does not, the Regulation runs 
into the sound policy reason underlying the statute: USAGM must be able 
to reprogram funds quickly to focus resources on global hotspots as 
crises suddenly unfold in order to tell America's story where it 
matters most. Cf. 22 U.S.C. 6202(b)(4) (requiring that United States 
international broadcasting have ``the capability to provide a surge 
capacity to support United States foreign policy objectives during 
crises abroad''). This uncertainty and tension further counsel repeal 
of the Regulation.
* * * * *
    The foregoing examples demonstrate that the Regulation is 
unworkable in the context of managing USAGM consistently with the CEO's 
statutory mandate and the Agency's purposes, and should therefore be 
repealed.

III. The Regulation's Vagueness Also Renders It Unworkable

    The Regulation is so vague that it creates immense difficulty for 
USAGM officials attempting to determine the rules by which their 
conduct will be judged. This lack of ``fair notice'' and operational 
functionality has burdened the CEO and other USAGM officials in the 
discharge of their duties--and will continue to do so unless and until 
it is repealed. Vagueness delays action that requires expedition and 
needlessly consumes substantial scarce resources better spent 
elsewhere.\6\ Operationally, this vagueness renders the Regulation 
unworkable and further counsels its repeal.
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    \6\ To be sure, USAGM's interpretation of its own regulations 
receives deference. See Auer v. Robbins, 519 U.S. 452 (1997). But 
that merely mitigates--and does not solve--the substantial 
operational issues flowing from the uncertainties caused by the 
breadth and ambiguity of the Regulation.
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A. The Regulation's Prohibition

    The Regulation reaches any conduct to ``direct, pressure, coerce, 
threaten, interfere with, or otherwise impermissibly influence'' any 
staff within the ``newsroom'' ``in the performance of their 
journalistic and broadcasting duties and activities.'' 22 CFR 531.3(c). 
This language sweeps in a substantial range of actions by the CEO and 
USAGM staff, but it is not clear which, or to what degree. Several key 
definitions make clear its problematic vagueness.
    1. The range of actions that could be construed to constitute an 
``attempt'' to ``direct, pressure, coerce, threaten, interfere with, or 
otherwise impermissibly influence'' is undefined. What constitutes such 
an attempt? What constitutes ``coercion,'' ``pressure,'' or 
``interfere[nce]''? Must it be objective or subjective? If objective, 
objective against what standard? And what renders an influence 
``impermissabl[e]''? What degree of causal connection must there be 
between action and effect? What work does performance of ``journalistic 
and broadcasting duties and activities'' capture? All the work of 
federal employees in the ``newsroom''? Or just some of it? The 
Regulation does not clearly answer these questions.
    2. What constitutes the ``newsroom''? The Regulation initially 
defines that term as the news division of a USAGM-Network. The scope of 
the news division depends on the structure of the Network. Depending 
how a Network is organized the head of that Network may or may not be 
considered to be within the news division. The Board of a Network is 
considered to be outside the news division. Those within the news 
division must adhere to the highest professional standards of 
journalism in carrying out their responsibilities. Even if outside the 
newsroom, as set forth herein, the head of a network is still required 
to act in accordance with the highest standards of professional 
journalism in carrying out their roles with respect to the journalism, 
and thus ensuring the professional ``independence and integrity'' of 
the network. Id. Sec.  531.4(e).
    But this definition is supplemented by a second definition of the 
``newsroom'' in the definition of those outside the ``firewall.'' Under 
that definition, the newsroom is also composed of anyone who, under the 
``highest standards of professional journalism,'' is ``involved with 
carrying out any aspect of journalism (e.g., the creation, editing, 
reporting, distributing, etc., of content) . . . .'' Id. Sec.  
531.4(c).
    This distinction matters substantively. Under a pure structural 
approach, a publisher is likely outside of the newsroom's 
organizational chart. But looking to the publisher's substantive role, 
the publisher may ``edit'' stories under unusual circumstances, such as 
when a story is controversial or if there is concern about a libel 
action.
    The second definition interjects substantial ambiguity. Two 
examples illustrate this point.
    No serious newspaper allows the publication of material likely to 
result in a libel action without legal review. Assume the lawyer who 
reviews the story ``edits'' for legal reasons. Does the lawyer sit 
inside the newsroom? Almost certainly not. The lawyer ``edits'' the 
story, but not within the realm of the day-to-day ``editing'' 
conception of the word ``editing.'' It is a special type of 
``editing.'' Is that example inapposite, as it is not an everyday 
``common'' usage of the term ``edit,'' or does the term ``edit'' 
receive a broad definition? The Regulation does not provide an answer. 
Looking to the predicate clause regarding the ``highest standards of 
professional journalism'' is circular--almost all reputable newspapers 
subject certain stories to heightened legal review and a lawyer might 
``edit'' in that limited circumstance. Does the term vary with the 
story, i.e., is the lawyer within the newsroom only as to those stories 
the lawyer ``edits''?
    Most broadcasters have program directors that sit outside of the 
Newsroom. But when stories involve matters of critical import, or are 
highly controversial, program directors can and do step in and ``edit'' 
or otherwise provide controls. But again, this is a special sort of 
``extra'' editorial review that is outside the normal instance. So the 
analysis above applies.

B. The Regulation's General Exception

    The ambiguity as to what the Regulation prohibits is compounded by 
the general exception in the Regulation, that the CEO can ``undertak[e] 
the same type of direction and oversight that those in equivalent 
leadership positions in an organization overseeing other reputable news 
organizations may provide.'' 22 CFR 531.3(e)(3). This exception, too, 
is unclear.
    For starters, what is a ``reputable news organization''? The 
Regulation's definition does not answer the question, defining that 
term as ``a news organization that adheres to the highest professional 
standards of journalism and has a firewall which insulates the news 
side of the operation to ensure that editorial decisions are not 
influenced in a manner or by factors inconsistent with the highest 
standards of professional journalism.'' Id. Sec.  531.4(i). The term 
``highest professional standards of journalism'' is then defined as 
``highest professional standards in the field of journalism.'' Id. 
Sec.  531.4(f). This does not provide clear guidance.
    Moreover, within that definition, how does one define the term 
``firewall''? Are there variations in what constitutes an acceptable 
``firewall''? How does one determine what is permissible ``direction'' 
or ``oversight''? If news organizations disagree, which standards 
control, and how is that decided? Is the reference to American ``news 
organizations'' or does one look to foreign nations? This last question 
is particularly important, as different nations--even those who share a 
strong tradition of a free press--have different traditions regarding 
some journalistic standards. For example, Britain is

[[Page 79432]]

democratic and has a strong and storied tradition of a free press. But 
its libel laws are much more plaintiff-friendly. Some British papers 
reflect this in terms of the publisher's authority over the newsroom.
* * * * *
    At the end of the day, the Regulation creates substantial hurdles 
to everyday USAGM operations through its lack of clarity. Under the 
Regulation any decision that could engender controversy and could 
somehow be argued to violate Regulation, must go through a long and 
time consuming legal and operational review--no matter how minor the 
decision. This is contrary to the purposes of a regulation of internal 
agency procedure, which should be to clarify and facilitate agency 
operations. It also undermines the purpose of centralizing control of 
USAGM in a single CEO. These points strongly support repeal of the 
Regulation.
    Repeal due to the Regulation's vagueness is also supported by 
another related fundamental factor--accountability. The Regulation's 
vagueness breaks and obfuscates clear lines of authority and 
accountability within the organization. For example, if United States 
Government employees can break a story by knowingly and willfully 
publishing classified information, the voters and Congress should know 
why, and most importantly, whose call it was. And if the President or 
his officers decide against taking such a risk, they should have the 
clear ability to do so and to ensure that the decision is carried out 
by the organization.

Conclusion

    The Regulation was voted on by the BBG via an email notation vote 
hours before the CEO was confirmed by the United States Senate. The 
putative statutory basis for the Regulation has existed for many years 
and USAGM: (1) Did not promulgate a regulation during that time; and 
(2) did not seem to suffer any major issues--on this point--for want of 
a regulation. The Regulation is repealed.

Effective Date

    Analogous to the immediate operation of the Regulation now being 
repealed, this repeal is already effective upon the Agency having been 
promulgated by the CEO. Cf. Firewall and Highest Standards of 
Professional Journalism, 85 FR 36151. Publication will codify the 
repeal into the Federal Register. Those provisions pertaining to non-
supervisory employees deemed subject to collective bargaining 
requirements set forth under the Federal Service Labor-Management 
Relations Statute and the Agency's negotiated labor-management 
agreements would only become effective subject to the terms and 
conditions within those bargaining agreements.

Rulemaking Requirements

    1. This final rule has been determined to be exempt from review for 
purposes of Executive Order 12866.
    2. This rule does not impose information collection and 
recordkeeping requirements. Consequently, it need not be reviewed by 
the Office of Management and Budget under the provisions of the 
Paperwork Reduction Act of 1995.
    3. This rule does not contain policies with federalism implications 
as this term is defined in Executive Order 13132.
    4. The provisions of the Administrative Procedure Act (5 U.S.C. 
553, et seq.,) requiring notice of proposed rulemaking, the opportunity 
for public participation, and a delay in effective date, are 
inapplicable because, just like the underlying regulation hereby being 
repealed (Firewall and Highest Standards of Professional Journalism, 85 
FR at 36151), this rule involves a rule of agency organization, 
procedure, or practice. (5 U.S.C. 553(b)(A)). Further, no other law 
requires that a notice of proposed rulemaking and an opportunity for 
public comment be given for this final rule. Because a notice of 
proposed rulemaking and an opportunity for public comment are not 
required to be given for this rule under 5 U.S.C. or by any other law, 
the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.) are not applicable. Accordingly, this rule is issued in 
final form. Although there is no formal comment period, public comments 
on this rule are welcome on a continuing basis. Comments should be 
submitted to Daniel Rosenholtz, 330 Independence Avenue SW, Washington, 
DC 20237 (email at: [email protected]).

List of Subjects in 22 CFR Part 531

    Conflict of interest, Communications, News media.

Authority and Issuance

    For the foregoing reasons, pursuant to the Chief Executive 
Officer's authorities under the U.S. International Broadcast Act (22 
U.S.C. 6201, et seq.), the United States Agency for Global Media amends 
22 CFR chapter V as follows:

0
1. Revise the heading for chapter V to read as follows:

Chapter V--UNITED STATES AGENCY FOR GLOBAL MEDIA

PART 531--[Removed and Reserved]

0
2. Remove and reserve part 531.

Michael Pack,
Chief Executive Officer, U.S. Agency for Global Media.
[FR Doc. 2020-24736 Filed 12-9-20; 8:45 am]
BILLING CODE 8610-01-P