[Federal Register Volume 64, Number 24 (Friday, February 5, 1999)]
[Proposed Rules]
[Pages 5725-5727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-2698]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Parts 50 and 51

[Public Notice 2961]


Nationality Procedures--Report of Birth Regulation; Passport 
Procedures--Revocation or Restriction of Passports Regulation

AGENCY: Bureau of Consular Affairs, State.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: This proposed rule would amend regulations to add new grounds 
for denying, revoking or canceling a passport, and for canceling a 
Consular Report of Birth. The proposed rule

[[Page 5726]]

would authorize the cancellation of a Consular Report of Birth, or a 
certification thereof, if it appears that such document was illegally, 
fraudulently, or erroneously obtained, or was created through 
illegality or fraud. It also would amend the existing regulation to 
authorize the cancellation of a United States passport when a person 
has obtained a United States passport illegally or erroneously, or when 
the Department of State has been notified that a naturalized person 
whose order of admission to citizenship and certificate of 
naturalization, on the basis of which the passport was issued, have 
been canceled or set aside as the result of a judicial denaturalization 
procedure.
    The proposed rule also amends regulations to replace the procedures 
for appeal of adverse passport action. Other agency regulations contain 
provisions for the organization and operation of the Board of Appellate 
Appeal of the Department of State. Under the proposed rule, the Board 
of Appellate Review would no longer have jurisdiction to consider 
appeals from adverse passport actions. The decision of the Deputy 
Assistant Secretary of State for Passport Services would be final.

DATES: Written comments must be received no later than March 8, 1999.

ADDRESSES: Written comments should be addressed to: Chief, Legal 
Division, Office of Passport Policy, Planning and Advisory Services, 
1111 19th Street, N.W., Suite 260, Washington, D.C. 20524.

FOR FURTHER INFORMATION CONTACT: Sharon Palmer-Royston, Office of 
Passport Policy and Advisory Services, Bureau of Consular Affairs, 
Department of State (202) 955-0231.

SUPPLEMENTARY INFORMATION: A passport when issued for its full validity 
period and a ``Report of Birth Abroad of a Citizen of the United 
States'', issued by a consular officer to document a citizen born 
abroad, are documents established as proof of United States citizenship 
by the provisions of section 33 of the Department of State Basic 
Authorities Act of 1956, as amended (22 U.S.C. 2705). 8 U.S.C. 1504 
(108 Stat. 4309, October 25, 1994) authorizes the Secretary of State to 
cancel either of these documents if it appears that they were obtained 
illegally, fraudulently or erroneously. The proposed rule would amend 
the regulations to provide for a post-cancellation hearing when a 
Consular Report of Birth, or certification thereof, is canceled. The 
provisions of 22 CFR 51.75 already provide for notification in writing 
of the reasons for the revocation and of the procedures for review to 
any person who is the subject of a passport cancellation and revocation 
on the grounds, among others, that the passport was obtained illegally, 
fraudulently or erroneously. Procedures for review include a hearing 
available under subsections 51.80 through 51.89 of the passport 
regulations in 22 CFR part 51. Such a hearing concerns only the extent 
to which the passport was illegally, fraudulently or erroneously 
obtained and not the citizenship status of the person in whose name the 
document was issued.
    A district court of the United States may denaturalize an 
individual in a judicial proceeding on the grounds that such order and 
certificate of naturalization were illegally procured or were procured 
by concealment of a material fact or by willful misrepresentation. Any 
person who is the subject of a passport revocation due to judicial 
denaturalization, i.e., by reason of noncitizenship, is not entitled to 
a hearing by the Department of State, pursuant to the provisions in 22 
CFR 51.80(a).
    The Board of Appellate Review of the Department of State has had 
jurisdiction to consider appeals from decisions of the Office of 
Passport Services that constitute adverse action affecting a passport: 
denial, revocation, or limitation. This jurisdiction has been 
infrequently utilized, and an adverse action can be reviewed fairly and 
efficiently without the same kind of administrative hearing that the 
Board conducts in loss of nationality cases. Changes in the applicable 
laws, their interpretation, and practice thereunder now make it even 
more unlikely that administrative appeals will be taken. Accordingly, 
22 CFR Part 7 is being amended to eliminate this particular 
administrative appeal jurisdiction. This amendment to 22 CFR part 51, 
subpart F, reflects that change and replaces an appeal with a request 
for reconsideration.
    In current practice, the most common adverse passport action is 
denial or revocation based upon grounds set forth in 22 CFR section 
51.70(a), such as being subject to a Federal warrant of arrest or being 
under court ordered restraint. In these cases, the Board of Appellate 
Review or other appellate body within the Department of State has no 
authority to affect the underlying ground for adverse passport action, 
so that this rule would result in no change in existing practice. 
Similarly, passport denial or revocation as set forth in 22 CFR 
subsection 51.70(b)(4), the Secretary of State's determination that 
activities of the affected national abroad are causing or are likely to 
cause serious damage to the national security or the foreign policy of 
the United States, has not been delegated by the Secretary and is not 
subject to subordinate review.
    Accordingly, the findings of fact and recommendations resulting 
from a hearing before a hearing officer are proposed to be referred to 
the Deputy Assistant Secretary for Passport Services for decision 
instead of to the Assistant Secretary for Consular Affairs. The rule 
would permit the adversely affected person to request reconsideration 
by the Deputy Assistant Secretary, but the initial decision or the 
decision based upon request for reconsideration, as the case may be, is 
final.
    The rule would also amend 22 CFR section 51.84 to substitute a more 
general statement of legal qualifications for representatives for the 
current reference to the qualification set by the Board of Appellate 
Review.
    Finally, the rule would make clear that nothing in revised 22 CFR 
section 51.89 bars an adversely affected person from submitting a new 
passport application as provided for in 22 CFR part 51, subparts B 
through D.
    These proposed changes to the regulations are hereby certified as 
not expected to have a significant economic impact on a substantial 
number of small entities under the criteria of the Regulatory 
Flexibility Act, 5 U.S.C. 605(b). In addition, they will not impose 
information collection requirements under the provisions of the 
Paperwork Reduction Act, 44 U.S.C., Chapter 35. Nor do these rules have 
federalism implications warranting the preparation of a Federalism 
Assessment in accordance with E.O. 12988. These rules are exempt from 
review under E.O. 12988 but have been reviewed and found to be 
consistent with its objectives.

List of Subjects

22 CFR Part 50

    Citizenship and Naturalization

22 CFR Part 51

    Administrative practice and procedure, Drug traffic control, 
Passports and visas, Reporting and recordkeeping requirements.

    Accordingly, 22 CFR Parts 50 and 51 are proposed to be amended as 
follows:

PART 50--NATIONALITY PROCEDURES

    1. The authority citation for Part 50 is revised to read as 
follows:

    Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104, 1502, 1503 and 1504.


[[Page 5727]]


    2. Section 50.7 is amended by adding a new paragraph (d) as 
follows:


Sec. 50.7  Consular Report of Birth Abroad of a Citizen of the United 
States of America.

* * * * *
    (d) A consular report of birth, or a certification thereof, may be 
canceled if it appears that such document was illegally, fraudulently, 
or erroneously obtained, or was created through illegality or fraud. 
The cancellation under this paragraph of such a document purporting to 
show the citizenship status of the person to whom it was issued shall 
affect only the document and not the citizenship status of the person 
in whose name the document was issued. A person for or to whom such 
document has been issued or made shall be given at such person's last 
known address, written notice of the cancellation of such document, 
together with the specific reasons for the cancellation and the 
procedures for review available under the provisions in 22 CFR 51.81 
through 51.89.

PART 51--PASSPORTS

    1. The authority citation for Part 51 is revised to read as 
follows:

    Authority: 22 U.S.C. 211a; 22 U.S.C. 2651a, 2671(d)(3), 2714 and 
3926; 31 U.S.C. 9701; E.O. 11295, 3 CFR, 1966-1970 Comp., p 570; 
sec. 129, Pub. L. 102-138, 105 Stat. 661; 8 U.S.C. 1504.

    2. Section 51.72 is amended by revising paragraph (b) and adding 
paragraph (c) as follows:


Sec. 51.72  Revocation or restriction of passports.

* * * * *
    (b) The passport has been obtained illegally, by fraud, or has been 
fraudulently altered, or has been fraudulently misused, or has been 
issued in error; or
    (c) The Department of State is notified that a certificate of 
naturalization issued to the applicant for or bearer of the passport 
has been canceled by a federal court.
    3. Section 51.80 is revised to read as follows:


Sec. 51.80  Applicability of Secs. 51.81 through 51.89.

    (a) The provisions of Secs. 51.81 through 51.89 apply to any action 
of the Secretary taken on an individual basis in denying, restricting, 
revoking or invalidating a passport or a Consular Report of Birth, or 
in any other way adversely affecting the ability of a person to receive 
or use a passport except action taken by reason of:
    (1) Noncitizenship,
    (2) Refusal under the provisions of Sec. 51.70(a)(8),
    (3) Refusal to grant a discretionary exception under the emergency 
or humanitarian relief provisions of Sec. 51.71(c), or
    (4) Refusal to grant a discretionary exception from geographical 
limitations of general applicability.
    (b) The provisions of this subpart shall otherwise constitute the 
administrative remedies provided by the Department to persons who are 
the subject of adverse action under Secs. 51.70, 51.71 or 51.72.
    5. Section 51.83 is amended by revising the phrase ``Administrator 
of'' to read ``Deputy Assistant Secretary for Passport Services in'' 
and by removing ``Security and''.
    6. Section 51.84 is amended by revising the phrase ``must possess 
the qualifications prescribed for practice before the Board of 
Appellate Review'' to read ``must be admitted to practice in any State 
of the United States, the District of Columbia, or any territory or 
possession of the United States''.
    7. Section 51.89 is revised to read as follows:


Sec. 51.89  Decision of Deputy Assistant Secretary for Passport 
Services.

    The person adversely affected shall be promptly notified in writing 
of the decision of the Deputy Assistant Secretary for Passport 
Services, and, if the decision is adverse to that person, the 
notification shall state the reasons for the decision. The notification 
shall also state that the adversely affected person may request 
reconsideration within 60 days from the date of the notice of the 
adverse action. If no request is made within that period, the decision 
is considered final and not subject to further administrative review; a 
decision on a request for reconsideration is also administratively 
final. Nothing in this section, however, shall be considered to bar the 
adversely affected person from submitting a new passport application as 
provided for in subparts B through D of this part.

    Dated: December 29, 1998.
Mary A. Ryan,
Assistant Secretary for Consular Affairs.
[FR Doc. 99-2698 Filed 2-4-99; 8:45 am]
BILLING CODE 4710-06-P