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* * * * * of International Broadcasting Act and with United States treaty Issued in Washington, DC, on December 3, (‘‘IBA’’) (22 U.S.C. 6204(b)). obligations); id. section 6202(b)(1), (3) 2020. The Regulation was promulgated only (mandating that United States George Gonzalez, when it became apparent that the international broadcasting include leadership of USAGM was about to Acting Manager, Rules and Regulations ‘‘news which is consistently reliable Group. change via Senate confirmation of a and authoritative, accurate, objective, USAGM Chief Executive Officer [FR Doc. 2020–26920 Filed 12–9–20; 8:45 am] and comprehensive’’ and constitutes a (‘‘CEO’’). See Firewall and Highest ‘‘clear and effective presentation of the BILLING CODE 4910–13–P Standards of Professional Journalism, policies of the United States 85 FR at 36150 (expressly identifying Government and responsible discussion the pending end of the Board’s tenure as and opinion on those policies’’); id. UNITED STATES AGENCY FOR the motivating factor for the timing and section 6202(b)(4) (requiring United GLOBAL MEDIA issuance of the Regulation). Senate States international broadcasting to confirmation of a CEO caused the BBG 22 CFR Chapter V include ‘‘the capability to provide a to dissolve, and transferred all of its surge capacity to support United States RIN 3112–AA03 powers to the CEO. See 22 U.S.C. foreign policy objectives during crises 6203(b)(1). abroad’’). Repeal of Regulation Entitled Firewall At its core, the Regulation asserts that Upon taking office, the CEO directed and Highest Standards of Professional ‘‘a firewall exists between anybody a review of the Regulation and sought Journalism involved with any aspect of journalism external legal counsel. (e.g., the creation, editing, reporting, AGENCY: United States Agency for The Regulation is hereby repealed. distributing, etc., of content) and Global Media (formerly Broadcasting everyone else in the organization,’’ and I. There Is Tension Between the Board of Governors). that this former Board-preferred policy Regulation on the One Hand, and ACTION: Final rule. is violated when anyone outside of the USAGM’s Statutory Mission and Article II of the Constitution on the SUMMARY: The United States Agency for ‘‘newsroom’’ ‘‘attempts to direct, Other Global Media (formerly known as the pressure, coerce, threaten, interfere Broadcasting Board of Governors) is with, or otherwise impermissibly A. USAGM’s Statutory Mission influence any of the USAGM Networks, repealing the regulation entitled Since United States international ‘‘Firewall and Highest Standards of including their leadership, officers, employees, or staff, in the performance broadcasting was first codified in 1948, Professional Journalism’’ published on the statutory objective was—and still June 15, 2020. of their journalistic and broadcasting duties and activities.’’ 22 CFR 531.3(b), is—‘‘to enable the Government of the DATES: This rule is effective without (c). This regulatory instruction by its United States to promote a better actual notice as of December 10, 2020. terms suggests USAGM is a typical understanding of the United States in For the purposes of enforcement, actual broadcasting organization, which other countries . . . [including by] an notice will be used as of October 26, squarely contradicts USAGM’s statutory information service to disseminate 2020. mandate to promote particular United abroad information about the United FOR FURTHER INFORMATION CONTACT: States values and interests. See, e.g., 22 States, its people, and policies . . . .’’ Daniel Rosenholtz at Rule_Comments@ U.S.C. 6202(a)(1)–(2) (mandating that United States Information and usagm.gov or (202) 920–2342. United States international broadcasting Educational Exchange Act of 1948, SUPPLEMENTARY INFORMATION: be consistent with United States foreign Public Law 80–402, section 2, 62 Stat. policy objectives, international 6, 6 (1948) (codified at 22 U.S.C. 1431). Background telecommunications policies, and When VOA was codified in statute in The United States Agency for Global United States treaty obligations); id. 1976, Congress made clear that VOA’s Media (‘‘USAGM’’) is an agency of the Section 6202(a)(8) (mandating the purpose was to serve American interests Federal Government that exercises promotion of ‘‘respect for human rights, abroad. VOA was to ‘‘communicat[e] authority over non-military United including freedom of religion’’). Unlike directly with the peoples of the world States government broadcasting. private broadcasting organizations, the by radio’’ to serve the ‘‘long-range USAGM, which was created by the mission of USAGM from its statutory interests of the United States’’ as International Broadcasting Act of 1994 origins has been to support United governed by enumerated principles under a different name, currently States foreign policy goals by furthering which have been codified in the VOA operates five networks—Voice of American values and facilitating the Charter. ‘‘VOA will serve as a America (‘‘VOA’’), the Office of Cuba dissemination of objectively accurate consistently reliable and authoritative Broadcasting (‘‘OCB’’), Radio Free factual news and information overseas. source of news [that is] accurate, Europe/Radio Liberty (‘‘RFE/RL’’), See United States Information and objective, and comprehensive’’; Radio Free Asia (‘‘RFA’’) and the Educational Exchange Act of 1948, ‘‘represent America . . . and . . . Middle East Broadcasting Networks Public Law 80–402, section 2, 62 Stat. present a balanced and comprehensive (‘‘MBN’’) (collectively the ‘‘USAGM 6, 6 (1948); see also, e.g., id. section projection of significant American Networks’’ or ‘‘Networks’’). 6201(2) (noting that the values furthered thought’’; and ‘‘present the policies of On June 4, 2020, the Broadcasting by the agency such as the ‘‘[o]pen the United States clearly and effectively, Board of Governors (‘‘BBG’’), USAGM’s communication of information and and . . . present responsible discussion leadership at the time, promulgated a ideas among the peoples of the world,’’ and opinion on these policies.’’ Foreign regulation governing internal agency further international peace and stability, Relations Authorization Act, FY 1977, operations, Firewall and Highest and serve ‘‘the interests of the United Public Law 94–350, section 206, 90 Stat. Standards of Professional Journalism, States’’); id. section 6202(a)(1), (3) 823, 831–32 (1976). 85 FR 36150 (June 15, 2020) (codified at (requiring United States broadcasting to The current statutory mission of 22 CFR part 531) (the ‘‘Regulation’’) that ‘‘be consistent with the broad foreign USAGM is to serve United States purported to implement section 305(b) policy objectives of the United States’’ interests through Government

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sponsored news abroad. Under the IBA, 6202(a)(4) (prohibiting United States pursuant to this title.’’ Id. section United States international broadcasting international broadcasting from 6204(a)(1). must: ‘‘duplicat[ing] the activities of • ‘‘To review and evaluate the • ‘‘[B]e consistent with the broad government supported broadcasting mission and operation of, and to assess foreign policy objectives of the United entities of other democratic nations’’). the quality, effectiveness, and States.’’ Id. section 6202(a)(1). By design, their purpose and focus is professional integrity, of all such • ‘‘[B]e consistent with the foreign relations and the promotion of activities within the context of the broad international telecommunications American objectives—not simply foreign policy objectives of the United policies and treaty obligations of the presenting news or engaging in States.’’ Id. section 6204(a)(2). • United States.’’ Id. section 6202(a)(2). journalistic expression. For example, ‘‘To ensure that United States • ‘‘[I]nclude a balanced and the Networks are to articulate the international broadcasting is conducted comprehensive projection of United American perspective while countering in accordance with the standards and States thought and institutions, international views that undermine principles’’ set forth in the IBA. Id. reflecting the diversity of United States section 6204(a)(3). American values and freedom, or that • culture and society.’’ Id. section might aid our enemies’ messaging, by ‘‘To review, evaluate, and 6202(b)(2). determine, at least annually, after • providing a ‘‘clear and effective ‘‘[I]nclude clear and effective presentation of the policies of the consultation with the Secretary of State, presentation of the policies of the United States Government and the addition or deletion of language United States Government and responsible discussion and opinion on services.’’ Id. section 6204(a)(4). responsible discussion and opinion on • To take a number of different those policies.’’ Id. section 6202(b)(3). those policies, including editorials, expansive personnel, materiel, and They also counter soft-power through broadcast by the Voice of America, contracting actions. Id. section news in countries without a free media which present the views of the United 6204(a)(8), (10)–(11), (15)–(19). by presenting ‘‘a variety of opinions and States Government.’’ Id. section • ‘‘To redirect or reprogram funds voices from within particular nations 6202(b)(3). within the scope of any grant or • Maintain ‘‘the capability to provide and regions prevented by censorship or cooperative agreement, or between a surge capacity to support United repression from speaking to their fellow grantees, as necessary.’’ Id. section States foreign policy objectives during countrymen.’’ Id. section 6202(b)(7). 6204(a)(21). crises abroad.’’ Id. section 6202(b)(4). By law, the USAGM networks must • To appoint the Officers and • ‘‘[P]romote respect for human ‘‘not duplicate the activities of private Directors of the USAGM Networks who rights, including freedom of religion.’’ United States broadcasters’’ (id. section serve at his pleasure. Id. section Id. section 6202(a)(8). VOA is further 6202(a)(3)) or ‘‘the activities of 6209(d). required to ‘‘present a balanced and government supported broadcasting The CEO also ‘‘shall regularly consult comprehensive projection of significant entities of other democratic nations.’’ with and seek from the Secretary of American thought and institutions’’ (id. (Id. section 6202(a)(4)). Under the State guidance on foreign policy section 6202(c)(2)) and to ‘‘present the Smith-Mundt Act of 1948 (as amended) issues.’’ Id. section 6209b. polices of the United States clearly and USAGM may broadcast only news ‘‘intended for foreign audiences B. Article II of the United States effectively, and . . . also present Constitution responsible discussion and opinion on abroad.’’ Id. section 1461(a) (emphasis these policies.’’ (Id. section 6202(c)(3)). added). And ‘‘[n]o funds authorized to Article II imbues the statutory scheme These tasks are seen as essential to be appropriated to the Department of charging USAGM to promote American serving ‘‘[t]he long range interests of the State or the Broadcasting Board of interests abroad. USAGM, which is now United States.’’ Id. section 6202(c).1 Governors shall be used to influence overseen by a single CEO, is not an Because of this special mission, public opinion in the United States.’’ Id. ‘‘independent establishment.’’ 3 Its CEO USAGM and its Networks do not section 1461–1a(a). is ‘‘appointed by the President, by and function as a traditional news or media The IBA grants the CEO a number of with the advice and consent of the agency and were never intended to do broad authorities to carry out these Senate.’’ 22 U.S.C. 6203(b)(1). The CEO so. See, e.g., id. section 6202(a)(3) weighty responsibilities to promote thus has both the power and the duty to (prohibiting United States international American interests abroad.2 In execute the applicable laws of the broadcasting from ‘‘duplicat[ing] the particular the CEO has express power: United States under the President’s activities of private United States • ‘‘To direct and supervise all supervision. See, e.g., Myers v. United broadcasters’’); see also id. section broadcasting activities conducted States, 272 U.S. 52, 135 (1926); Statute Limiting the President’s Authority to 1 See also 22 U.S.C. 6209(b)(1) (if CEO 2 The consolidation from Board to CEO was the Supervise the Director of the Center for consolidates grantees he must require the result of a widespread view that USAGM’s Disease Control in the Distribution of an consolidated grantee to ‘‘counter state-sponsored predecessor agency needed reform that could only AIDS Pamphlet, 12 Op. OLC 47, 56–58 propaganda which undermines the national come from the energy of a single leader. See, e.g., (Mar. 11, 1988); The Jewels of the security or foreign policy interests of the United Statement on Signing the National Defense States and its allies’’); id. section 6201(2) (statutory Authorization Act for Fiscal Year 2017, at 3 (Dec. Princess Orange, 2 U.S. Op. Att’y Gen. purpose of IBA to ‘‘[o]pen communication of 23, 2016) (noting strong support for needed 482, 486–87 (Dec. 31, 1831). Executive information and ideas among the peoples of the ‘‘structural reform’’ of USAGM and power is at its zenith in the realm of world’’); Foreign Relations Authorization Act, ‘‘empowerment’’ of the USAGM CEO); Markup on foreign affairs. Fiscal Years 1988 and 1989, Public Law 100–204, H.R. 1853, H.R. 2100, H.R. 2323, H. Res. 213, H. Title IV, section 403, 101 Stat. 1381 (Dec. 22, 1987) Res. 235: H. Comm. on Foreign Affairs, 114th Cong. ‘‘[T]he President alone has the power (‘‘The Congress finds that the overriding national 104–05 (May 21, 2015) (statement of Ranking to speak or listen as a representative of security aspects of the $1,300,000,000 facilities Member Elliot L. Engel) (describing predecessor bill modernization program of the Voice of America as a ‘‘much-needed overhaul’’); Terrorist Attack in 3 It has long been the case, as the Supreme Court require the assurance of uninterrupted logistic Benghazi: The Secretary of State’s View: Hearing recently reaffirmed, just last term, that ‘‘[t]he entire support under all circumstances for the program. before the H. Comm. on Foreign Affairs, 113th executive Power belongs to the President Therefore, it is in the best interests of the United Cong. 25–26 (Jan. 23, 2013) (statement of Hillary alone.... [L]esser officers must remain States to provide a preference for United States Rodham Clinton, Secretary of State) (describing accountable to the President, whose authority they contractors bidding on the projects of this USAGM’s abilities to project soft power as wield.’’ Seila Law LLC v. CFPB, 140 S.Ct. 2183, program.’’). ‘‘practically defunct’’). 2197 (2020).

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the nation.’’ United States v. Curtiss- is also violated when someone inside and comprehensive,’’ presentations that Wright Export Corp., 299 U.S. 304, 319 the newsroom acts in furtherance of or are ‘‘clear and effective,’’ and ‘‘reliable (1936). Therefore, the President is the pursuant to such impermissible research capacity’’). ‘‘‘sole organ of the federal government influence. Id. section 531.3(c). The By its terms, the IBA’s reference to in the field of international relations’’’ Regulation purports to bind not only ‘‘professional independence’’ is distinct (Id. at 320 (internal citation omitted)) USAGM officials, but the entire from other statutory provisions and the President has ‘‘unique Executive Branch—up to and including purporting to establish entities responsibility’’ for the conduct of the President of the United States. The independent from managerial or policy ‘‘foreign . . . affairs.’’ (Sale v. Haitian Regulation’s only exception to this control or significant executive Ctrs. Council, Inc., 509 U.S. 155, 188 general edict is that the firewall does supervision. The phrase ‘‘professional (1993)). Because USAGM’s mandate is not prevent a USAGM CEO or Board independence’’ appears nowhere else in to further the foreign policy interests of from undertaking the same type of the United States Code. Statutory uses the United States, the President’s direction and oversight that those in of the term ‘‘independen[t]’’ reference appointee necessarily must have the equivalent leadership positions in an separate or freestanding entities, in authority to participate in the substance organization overseeing other reputable contrast, and typically employ just the of advancing that mission.4 news organizations may provide, in a standalone adjective ‘‘independent’’ or manner consistent with the highest ‘‘independence.’’ See, e.g., 5 U.S.C. 105 C. The Regulation standards of professional journalism. Id. (‘‘For the purpose of this title, The Regulation begins by asserting section 531.3(e)(3). ‘Executive agency’ means an Executive that USAGM is ‘‘an independent department, a Government corporation, establishment of the federal D. The Regulation Is in Tension With and an independent establishment.’’ government,’’ (Firewall and Highest USAGM’s Statutory Mandate and (emphasis added)); 24 U.S.C. 30 (‘‘head Article II Standards of Professional Journalism, of the department or independent 85 FR 36150) and claims that USAGM There is a significant tension between agency’’ (emphasis added)); 42 U.S.C. networks necessarily enjoy full editorial the Regulation on the one hand, and 1962b–1(b) (‘‘each Federal department independence in order to maintain their USAGM’s statutory mandate and the or independent agency’’ (emphasis ‘‘professional independence and CEO’s responsibilities and powers added)); 44 U.S.C. 1907 (referencing integrity,’’ per section 305(b) of the IBA. under statute and Article II on the other. ‘‘executive departments’’ and This statutorily mandated firewall The Regulation relies solely on ‘‘independent agencies’’). protects the independence of the section 305(b) of the IBA for its Further, as discussed, USAGM networks by insulating their editorial conclusion that ‘‘USAGM networks Networks are statutorily prohibited from decisions from interference from those necessarily enjoy full editorial competing with private ‘‘United States outside of the network, or from independence in order to maintain their broadcasters’’ and other ‘‘state impermissible considerations, as set ‘professional independence and supported broadcasting’’ from forth in 22 CFR 531.1(a). Section 305(b) integrity.’ ’’ Id. § 531.1(a). democratic nations, and they cannot of the IBA, however, provides only that But section 305(b) clearly does not seek to influence public opinion in the ‘‘[t]he Secretary of State and the Chief use the terms ‘‘respect’’ or United States. 22 U.S.C. 6202(a)(3)–(4); Executive Officer, in carrying out their ‘‘independence’’ in anything id. section 1461–1a(a). Conversely, the functions, shall respect the professional approaching the concept of structural, USAGM Networks are required to independence and integrity of the managerial, or policy independence, or program specific content to meet ‘‘[the] Board, its broadcasting services, and the the manner in which those terms may needs which remain unserved by the apply to any given private news grantees of the Board.’’ 22 U.S.C. totality of media voices available to the network. Rather, the statutory reference 6204(b). people of certain nations,’’ (Id. section The Regulation then posits that the to ‘‘professional independence’’ requires 6202(b)(5)) and ‘‘[i]nclude clear and ‘‘newsroom’’ of each USAGM Network the preservation of professionalism and effective presentation of the policies of is ‘‘fully insulated’’ from what it calls technical excellence. See, e.g., Oxford the United States Government and ‘‘any political or other external English Dictionary (‘‘professional’’: responsible discussion and opinion on pressures or processes that would be ‘‘[c]haracteristic of or suitable for a those policies.’’ (Id. section 6202(b)(3)). inconsistent with the highest standards professional person’’; ‘‘[t]hat has or The IBA provides that the CEO must, displays the skill, knowledge, of professional journalism.’’ Id. section among other things, ‘‘direct and experience, standards, or expertise of a 531.2(b) (emphasis added). At its core, supervise all [USAGM] broadcasting professional; competent, efficient’’; the Regulation asserts it is violated activities’’; ‘‘review and evaluate the ‘‘[t]hat has knowledge of the theoretical when any person within the Executive mission and operation of, and to assess or scientific parts of a trade or Branch or a Network, but outside the the quality, effectiveness, and occupation, as distinct from its practical newsroom, attempts to direct, pressure, professional integrity of, all such or mechanical aspects’’; ‘‘that raises a coerce, threaten, interfere with, or activities within the context of the broad trade to a learned profession’’); see also, otherwise impermissibly influence any foreign policy objectives of the United e.g., 22 U.S.C. 6202(a)(5) (requiring of the USAGM networks, including their States’’; and ‘‘ensure that United States United States international broadcasting leadership, officers, employees, or staff, international broadcasting is conducted to ‘‘be conducted in accordance with the in accordance with [certain] standards in the performance of their journalistic highest professional standards of and principles,’’ including that such and broadcasting duties and activities. It broadcast journalism’’); Id. section broadcasting ‘‘shall . . . be consistent 4 See also Harlow v. Fitzgerald, 457 U.S. 800, 812 6202(a)(6)–(7) (requiring broadcasting to with the broad foreign policy objectives n.19 (1982) (conducting foreign affairs a ‘‘central’’ ‘‘be based on reliable information’’ and of the United States,’’ ‘‘be consistent ‘‘domain’’ of the President); Dep’t of Navy v. Egan, ‘‘be designed so as to effectively reach with the international 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 a significant audience’’); Id. section telecommunications policies and treaty U.S. 280, 293–94 (1981)); Ludecke v. Watkins, 335 U.S. 160, 173 (1948) (holding that the President is 6202(b) (mandating, e.g., the provision obligations of the United States,’’ and the nation’s ‘‘guiding organ in the conduct of our of ‘‘news which is consistently reliable ‘‘be conducted in accordance with the foreign affairs’’). and authoritative, accurate, objective, highest professional standards of

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

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the Regulation’s general exception. If it ‘‘interfere[nce]’’? Must it be objective or it is not an everyday ‘‘common’’ usage does not, the Regulation runs into the subjective? If objective, objective against of the term ‘‘edit,’’ or does the term sound policy reason underlying the what standard? And what renders an ‘‘edit’’ receive a broad definition? The statute: USAGM must be able to influence ‘‘impermissabl[e]’’? What Regulation does not provide an answer. reprogram funds quickly to focus degree of causal connection must there Looking to the predicate clause resources on global hotspots as crises be between action and effect? What regarding the ‘‘highest standards of suddenly unfold in order to tell work does performance of ‘‘journalistic professional journalism’’ is circular— America’s story where it matters most. and broadcasting duties and activities’’ almost all reputable newspapers subject Cf. 22 U.S.C. 6202(b)(4) (requiring that capture? All the work of federal certain stories to heightened legal United States international broadcasting employees in the ‘‘newsroom’’? Or just review and a lawyer might ‘‘edit’’ in that have ‘‘the capability to provide a surge some of it? The Regulation does not limited circumstance. Does the term capacity to support United States clearly answer these questions. vary with the story, i.e., is the lawyer foreign policy objectives during crises 2. What constitutes the ‘‘newsroom’’? within the newsroom only as to those abroad’’). This uncertainty and tension The Regulation initially defines that stories the lawyer ‘‘edits’’? further counsel repeal of the Regulation. term as the news division of a USAGM- Most broadcasters have program * * * * * Network. The scope of the news directors that sit outside of the The foregoing examples demonstrate division depends on the structure of the Newsroom. But when stories involve that the Regulation is unworkable in the Network. Depending how a Network is matters of critical import, or are highly context of managing USAGM organized the head of that Network may controversial, program directors can and consistently with the CEO’s statutory or may not be considered to be within do step in and ‘‘edit’’ or otherwise mandate and the Agency’s purposes, the news division. The Board of a provide controls. But again, this is a and should therefore be repealed. Network is considered to be outside the special sort of ‘‘extra’’ editorial review news division. Those within the news that is outside the normal instance. So III. The Regulation’s Vagueness Also division must adhere to the highest the analysis above applies. Renders It Unworkable professional standards of journalism in B. The Regulation’s General Exception The Regulation is so vague that it carrying out their responsibilities. Even creates immense difficulty for USAGM if outside the newsroom, as set forth The ambiguity as to what the officials attempting to determine the herein, the head of a network is still Regulation prohibits is compounded by rules by which their conduct will be required to act in accordance with the the general exception in the Regulation, judged. This lack of ‘‘fair notice’’ and highest standards of professional that the CEO can ‘‘undertak[e] the same operational functionality has burdened journalism in carrying out their roles type of direction and oversight that the CEO and other USAGM officials in with respect to the journalism, and thus those in equivalent leadership positions the discharge of their duties—and will ensuring the professional in an organization overseeing other continue to do so unless and until it is ‘‘independence and integrity’’ of the reputable news organizations may repealed. Vagueness delays action that network. Id. § 531.4(e). provide.’’ 22 CFR 531.3(e)(3). This requires expedition and needlessly But this definition is supplemented exception, too, is unclear. consumes substantial scarce resources by a second definition of the For starters, what is a ‘‘reputable news better spent elsewhere.6 Operationally, ‘‘newsroom’’ in the definition of those organization’’? The Regulation’s this vagueness renders the Regulation outside the ‘‘firewall.’’ Under that definition does not answer the question, unworkable and further counsels its definition, the newsroom is also defining that term as ‘‘a news repeal. composed of anyone who, under the organization that adheres to the highest ‘‘highest standards of professional professional standards of journalism A. The Regulation’s Prohibition journalism,’’ is ‘‘involved with carrying and has a firewall which insulates the The Regulation reaches any conduct out any aspect of journalism (e.g., the news side of the operation to ensure that to ‘‘direct, pressure, coerce, threaten, creation, editing, reporting, distributing, editorial decisions are not influenced in interfere with, or otherwise etc., of content) . . . .’’ Id. § 531.4(c). a manner or by factors inconsistent with impermissibly influence’’ any staff This distinction matters substantively. the highest standards of professional within the ‘‘newsroom’’ ‘‘in the Under a pure structural approach, a journalism.’’ Id. § 531.4(i). The term performance of their journalistic and publisher is likely outside of the ‘‘highest professional standards of broadcasting duties and activities.’’ 22 newsroom’s organizational chart. But journalism’’ is then defined as ‘‘highest CFR 531.3(c). This language sweeps in looking to the publisher’s substantive professional standards in the field of a substantial range of actions by the role, the publisher may ‘‘edit’’ stories journalism.’’ Id. § 531.4(f). This does not CEO and USAGM staff, but it is not under unusual circumstances, such as provide clear guidance. clear which, or to what degree. Several when a story is controversial or if there Moreover, within that definition, how key definitions make clear its is concern about a libel action. does one define the term ‘‘firewall’’? Are problematic vagueness. The second definition interjects there variations in what constitutes an 1. The range of actions that could be substantial ambiguity. Two examples acceptable ‘‘firewall’’? How does one construed to constitute an ‘‘attempt’’ to illustrate this point. determine what is permissible ‘‘direct, pressure, coerce, threaten, No serious newspaper allows the ‘‘direction’’ or ‘‘oversight’’? If news interfere with, or otherwise publication of material likely to result in organizations disagree, which standards impermissibly influence’’ is undefined. a libel action without legal review. control, and how is that decided? Is the What constitutes such an attempt? What Assume the lawyer who reviews the reference to American ‘‘news constitutes ‘‘coercion,’’ ‘‘pressure,’’ or story ‘‘edits’’ for legal reasons. Does the organizations’’ or does one look to lawyer sit inside the newsroom? Almost foreign nations? This last question is 6 To be sure, USAGM’s interpretation of its own certainly not. The lawyer ‘‘edits’’ the particularly important, as different regulations receives deference. See Auer v. Robbins, story, but not within the realm of the nations—even those who share a strong 519 U.S. 452 (1997). But that merely mitigates—and does not solve—the substantial operational issues day-to-day ‘‘editing’’ conception of the tradition of a free press—have different flowing from the uncertainties caused by the word ‘‘editing.’’ It is a special type of traditions regarding some journalistic breadth and ambiguity of the Regulation. ‘‘editing.’’ Is that example inapposite, as standards. For example, Britain is

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democratic and has a strong and storied forth under the Federal Service Labor- Chapter V—UNITED STATES AGENCY FOR tradition of a free press. But its libel Management Relations Statute and the GLOBAL MEDIA laws are much more plaintiff-friendly. Agency’s negotiated labor-management Some British papers reflect this in terms agreements would only become effective PART 531—[Removed and Reserved] of the publisher’s authority over the subject to the terms and conditions ■ 2. Remove and reserve part 531. newsroom. within those bargaining agreements. Michael Pack, * * * * * Rulemaking Requirements At the end of the day, the Regulation Chief Executive Officer, U.S. Agency for creates substantial hurdles to everyday 1. This final rule has been determined Global Media. USAGM operations through its lack of to be exempt from review for purposes [FR Doc. 2020–24736 Filed 12–9–20; 8:45 am] clarity. Under the Regulation any of Executive Order 12866. BILLING CODE 8610–01–P decision that could engender 2. This rule does not impose controversy and could somehow be information collection and argued to violate Regulation, must go recordkeeping requirements. POSTAL SERVICE through a long and time consuming Consequently, it need not be reviewed legal and operational review—no matter by the Office of Management and 39 CFR Part 501 how minor the decision. This is Budget under the provisions of the contrary to the purposes of a regulation Paperwork Reduction Act of 1995. Authorization To Manufacture and of internal agency procedure, which 3. This rule does not contain policies Distribute Postage Evidencing should be to clarify and facilitate agency with federalism implications as this Systems; Correction operations. It also undermines the term is defined in Executive Order AGENCY: Postal ServiceTM. purpose of centralizing control of 13132. ACTION: Correcting amendments. USAGM in a single CEO. These points 4. The provisions of the strongly support repeal of the Administrative Procedure Act (5 U.S.C. SUMMARY: On December 4, 2020, the Regulation. 553, et seq.,) requiring notice of Postal Service published a final rule Repeal due to the Regulation’s proposed rulemaking, the opportunity concerning decertifying and vagueness is also supported by another for public participation, and a delay in withdrawing all non-Intelligent Mail related fundamental factor— effective date, are inapplicable because, Indicia compliant Postage Evidencing accountability. The Regulation’s just like the underlying regulation Systems. That document incorrectly vagueness breaks and obfuscates clear hereby being repealed (Firewall and listed the date decertified indicia may lines of authority and accountability Highest Standards of Professional not be recognized as valid postage for within the organization. For example, if Journalism, 85 FR at 36151), this rule use or refunds in one section of the rule United States Government employees involves a rule of agency organization, edits. This document corrects the final can break a story by knowingly and procedure, or practice. (5 U.S.C. regulation. willfully publishing classified 553(b)(A)). Further, no other law DATES: This correcting amendment is information, the voters and Congress requires that a notice of proposed effective December 10, 2020. should know why, and most rulemaking and an opportunity for FOR FURTHER INFORMATION CONTACT: importantly, whose call it was. And if public comment be given for this final the President or his officers decide Ezana Dessie, Principal Business rule. Because a notice of proposed Systems Analyst, Ezana.Dessie@ against taking such a risk, they should rulemaking and an opportunity for have the clear ability to do so and to usps.gov, (202) 268–5686. public comment are not required to be SUPPLEMENTARY INFORMATION: In the ensure that the decision is carried out given for this rule under 5 U.S.C. or by by the organization. final rule published on December 4, any other law, the analytical 2020, 85 FR 78234, in § 501.20, the Conclusion requirements of the Regulatory Postal Service listed the effective date The Regulation was voted on by the Flexibility Act (5 U.S.C. 601, et seq.) are that decertified indicia may not be BBG via an email notation vote hours not applicable. Accordingly, this rule is recognized as valid postage for use or before the CEO was confirmed by the issued in final form. Although there is refunds as June 20, 2025. This should United States Senate. The putative no formal comment period, public instead read June 30, 2025. The Postal statutory basis for the Regulation has comments on this rule are welcome on Service makes this change below. existed for many years and USAGM: (1) a continuing basis. Comments should be List of Subjects in 39 CFR Part 501 Did not promulgate a regulation during submitted to Daniel Rosenholtz, 330 Independence Avenue SW, Washington, Administrative practice and that time; and (2) did not seem to suffer _ any major issues—on this point—for DC 20237 (email at: Rule Comments@ procedure, Postal Service. want of a regulation. The Regulation is usagm.gov). For the reasons stated in the repealed. List of Subjects in 22 CFR Part 531 preamble, the Postal Service corrects 39 CFR part 501 by making the following Effective Date Conflict of interest, Communications, correcting amendment: Analogous to the immediate operation News media. of the Regulation now being repealed, Authority and Issuance PART 501—[AMENDED] this repeal is already effective upon the ■ Agency having been promulgated by the For the foregoing reasons, pursuant to 1. The authority citation for part 501 CEO. Cf. Firewall and Highest the Chief Executive Officer’s authorities continues to read as follows: Standards of Professional Journalism, under the U.S. International Broadcast Authority: 5 U.S.C. 552(a); 39 U.S.C. 101, 85 FR 36151. Publication will codify the Act (22 U.S.C. 6201, et seq.), the United 401, 403, 404, 410, 2601, 2605; Inspector repeal into the Federal Register. Those States Agency for Global Media amends General Act of 1978, as amended (Pub. L. 95– provisions pertaining to non- 22 CFR chapter V as follows: 452, as amended); 5 U.S.C. App. 3. supervisory employees deemed subject ■ 1. Revise the heading for chapter V to ■ 2. Amend § 501.20 by revising to collective bargaining requirements set read as follows: paragraph (b) to read as follows:

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