[Federal Register Volume 64, Number 77 (Thursday, April 22, 1999)]
[Rules and Regulations]
[Pages 19713-19715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10116]


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

DEPARTMENT OF STATE

22 CFR Parts 50 and 51

[Public Notice 3027]


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

AGENCY: Bureau of Consular Affairs, State.

ACTION: Final rule.

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

SUMMARY: This rule finalizes the proposed rule published February 5, 
1999 (64 FR 5725) and implements sections of the Immigration and 
Nationality Technical Corrections Act of 1994 (INTCA). The INTCA added 
new grounds for denying, revoking or canceling a passport, and for 
canceling a Consular Report of Birth. The rule authorizes 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 amends 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.
    Finally, the rule amends regulations by replacing 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 this rule, the Board of 
Appellate Review no longer has jurisdiction to consider appeals from 
adverse passport actions. The decision of the Deputy Assistant 
Secretary of State for Passport Services is final.

EFFECTIVE DATE: April 22, 1999.

FOR FURTHER INFORMATION CONTACT: Sharon E. Palmer-Royston, Chief, Legal 
Division, Office of Passport Policy, Planning and Advisory Services, 
U.S. Department of State, 1111 19th Street, N.W., Suite 260, 
Washington, D.C. 20524 (202) 955-0231.

SUPPLEMENTARY INFORMATION: The Department published a proposed rule, 
Public Notice 2961 at 64 FR 5725, February 5, 1999, with a request for 
comments, for numerous sections of Title 22, Parts 50 and 51 of the 
Code of Federal Regulations. The rule was primarily proposed to 
implement provisions of the Immigration and Nationality Technical 
Corrections Act of 1994, Pub. L. 103-416 (INTCA), though it also makes 
a procedural change for appeal of adverse passport action. The rule was 
discussed in detail in Public Notice 2961, as were the Department's 
reasons for the changes to the regulations. The rules incorporate 
changes to those sections in Parts 50 and 51 explained below.
    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 rule amends the regulations by providing 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

[[Page 19714]]

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 by 
eliminating 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 results 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 referred to the Deputy 
Assistant Secretary for Passport Services for decision instead of to 
the Assistant Secretary for Consular Affairs. The rule permits 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 also amends 22 CFR section 51.84 by substituting 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 makes 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.

Analysis of Comments

    The proposed rule was published February 5, 1999 at 64 FR 5725. The 
commenting period was closed March 8, 1999. The Department received one 
inquiry that concerned the change in regulations to replace the 
procedures for appeal of adverse passport action. The inquirer was 
concerned that eliminating jurisdiction for the Board of Appellate 
Review to consider appeals from adverse passport actions would deny 
procedural due process where the adverse action was taken on grounds of 
noncitizenship. However, a person who has been denied a passport on 
grounds that they are not a national of the United States may seek a 
declaration of their nationality in U.S. district court pursuant to the 
provisions of 8 U.S.C. 1503(a).

Final rule

    This rule is 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). This rule imposes no 
reporting or recordkeeping action from the public requiring the 
approval of the Office of Management and Budget under the Paperwork 
Reduction Act requirements. This rule has been reviewed as required by 
E.O. 12988 and determined to be in compliance therewith. This rule is 
exempted from E.O. 12866 but has been reviewed and found to be 
consistent therewith. The proposed rule was submitted for review in 
accordance with 5 U.S.C. 801 et seq., as amended.

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 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.

    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

[[Page 19715]]

    (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.


Sec. 51.83  [Amended]

    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''.


Sec. 51.84  [Amended]

    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 affect person from submitting a new passport application as 
provided for in subparts B through D of this part.

    Dated: April 9, 1999.
Donna J. Hamilton,
Acting Assistant Secretary for Consular Affairs.
[FR Doc. 99-10116 Filed 4-21-99; 8:45 am]
BILLING CODE 4710-06-P