Notice & Comment

State Seeks Input on Making Program Material Available, by Shannon Allen

The United States Department of State (“DOS”) issued an interim final rule amending regulations to implement Section 1078 of the National Defense Authorization Act of 2013 (“NDAA”); and seeks input on changing the availability of Public Diplomacy Program Materials in the United States.  U.S. public diplomacy outreach includes communications with foreign audiences abroad through Program Material. . . .”  The DOS is amending prior law to permit the DOS and the Broadcasting Board of Governors (“BBG”) to now “make public diplomacy program material available within the United States, upon request, following the dissemination of such material abroad . . .”

The U.S. public diplomacy mission is to support the achievement of U.S. foreign policy goals and objectives, advance national interests, and enhance national security by certain means.  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”), governs the domestic distribution of certain information about the United States, its people, and policies (“Program Material”) prepared for dissemination abroad.  Section 208 of the Foreign Relations Authorization Act, Fiscal Years 1986 and 1987 (22 U.S.C. 1461-1a) (“Section 208”) governs the creation of such (Program Material) material for the purpose of influencing domestic public opinion.  The NDAA amends and clarifies Section 501 and Section 208.  Prior to NDAA, “such material could not be disseminated within the United States . . . .”

Revised Section 501 permits the DOS and/or the BBG to make such Program Material available within the U.S.  Both the DOS and the 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).)

According to the DOS, this interim final rule:

  • benefits the public, media, and other organizations by allowing them to request and access DOS Program Material, which previously could not be disseminated within the United States;
  • 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;
  • is in response to a statutory requirement that will make more information available to the public; therefore, the benefits of the rulemaking outweigh any costs;
  • will not have a significant impact upon small businesses;
  • will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law; and
  • 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.

The DOS has determined that normal public rulemaking procedures are not practical, not necessary, and that there is good cause under5 U.S.C. 553(b)(B) and (d)(3) to exempt this interim final rule from public rulemaking procedures and to implement it upon publication.  In the interests of transparency and public participation, however, the DOS is publishing this rule as an interim final rule with a 60-day provision for public comment.

This interim final rule will be implemented as of April 21, 2014.  However, the DOS will accept comments on the interim final rule from the public until June 20, 2014.  Comments may be submitted by any of the following methods:

  • Online: Persons with access to the Internet may view this rule and provide comments by going to the Web site at:;
  • 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; or
  • Email: RIN (1400-AD50) must be included in the subject line.

This post was originally published on the legacy ABA Section of Administrative Law and Regulatory Practice Notice and Comment blog, which merged with the Yale Journal on Regulation Notice and Comment blog in 2015.

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