[Federal Register Volume 65, Number 196 (Tuesday, October 10, 2000)]
[Proposed Rules]
[Pages 60132-60136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25782]


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

DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 51

[Public Notice 3428]


Passport Procedures--Amendment to Requirements for Executing a 
Passport Application on Behalf of a Minor

AGENCY: Bureau of Consular Affairs, State.

ACTION: Proposed rule.

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

SUMMARY: This proposed rule amends regulations on Passports. The 
amendments bring passport regulations into conformity with current 
practice and implement the requirements of Section 236 of the Admiral 
James W. Nance and Meg Donovan Foreign Relations Authorization Act. 
That Section requires that both parents execute a passport application 
on behalf of a minor under age 14 or, if only one parent executes the 
application, such parent must establish his or her custodial status or 
the other parent's consent. It also provides for exceptions in exigent 
circumstances, such as those involving the health or welfare of the 
child, or when the Secretary of State determines that issuance of a 
passport is warranted by special family circumstances.

DATES: Written comments must be received no later than November 6, 
2000.

ADDRESSES: Written comments should be addressed to: John Hotchner, 
Office of Passport Policy, Planning and Advisory Services, 2401 E. 
Street, N.W., Room 917, Washington, D.C. 20522-0907.

FOR FURTHER INFORMATION CONTACT: John Hotchner, Office of Passport 
Policy and Advisory Services, Bureau of Consular Affairs, Department of 
State, (202) 663-2427.

SUPPLEMENTARY INFORMATION: As a measure to prevent the use of the 
United States passport in international child abduction, Congress 
enacted Section 236 of the Admiral James W. Nance and Meg Donovan 
Foreign Relations Authorization Act, Pub.L. 106-113. The

[[Page 60133]]

Section affects the passport application process for minors under the 
age of 14 by requiring that both parents execute the passport 
application on behalf of the minor; if only one parent executes the 
application, that parent must establish sole authority to execute the 
application or the other parent's consent to the application. This law 
will directly affect the passport applications of about one million 
families each year. Although Section 236 places an additional burden on 
the parents of minor children under the age of 14, the statute clearly 
reflects a judgment that its value in reducing child abduction will be 
seen to outweigh the burden of establishing both parents' consent to 
passport applications for children.

Present Passport Regulations To Assist in the Prevention of 
International Parental Child Abduction

    International parental child abduction is an ever more frequent 
phenomenon, reflecting in part the increasing number of international 
marriages and the ease with which persons can travel across 
international boundaries. In recent years, the Department of State, the 
Department of Justice, and the Congress of the United States have given 
cases of international parental child abduction greater attention and 
have sought new and more effective mechanisms for dealing with them. At 
present, both criminal and civil remedies can be invoked to deal with 
parental abductions after they occur. Such cases remain extremely 
difficult to resolve, however, and it is clear that preventing an 
abduction in the first instance is preferable.
    Under the Department's existing regulation, 22 CFR 51.27, a parent 
may request that his or her minor child's name be placed in the 
Department's passport namecheck clearance system so that, if an 
application is received for the child, the objecting parent will be 
notified before issuance. The passport may be denied if the Department 
has on file an order from a court of competent jurisdiction granting 
the objecting parent sole or joint custody or prohibiting the child's 
travel outside the court's jurisdiction without the express permission 
of the court or of the other parent. The Department recommends that 
parents who have a specific concern about international child abduction 
make use of the existing program in addition to relying on Section 236. 
The public should note that the provisions of the existing regulation 
extend to all minor children under age 18. This program for children 
under age 18 will remain in place when the new regulations relating to 
children under 14 go into effect.
    The Department recognizes that denying passport issuance may not 
prevent an abduction. Many U.S. citizen children acquire a second 
nationality at birth through a non-U.S. citizen parent or by birth 
outside the United States to a U.S. citizen parent. The inability to 
obtain a U.S. passport, therefore, does not prevent a child from 
obtaining and traveling on a foreign passport. Even an exit-control 
system, which the United States does not have, could not fully prevent 
all cases of dual-national children being wrongfully removed from the 
United States by an abducting parent. Nevertheless, limiting access to 
passports for minors may have some preventative effect. Consistent with 
this possibility, the Congress decided that the Department's long-
standing passport-denial-to-minors program should be supplemented by a 
requirement that both parents sign a passport application for a minor 
child under age 14 except in situations specified by statute or 
regulation. This regulation implements the new statutory requirement in 
a way that the Department believes meets the requirements of the 
statute and appropriately provides for exceptions.

Notice or Denial of a Passport at the Request of a Parent

    The proposed regulation amends subsection 51.27(d)(l)(i) to extend 
it to instances when court-ordered limitations on a child's travel are 
brought to the Department's attention in the course of a passport 
application rather than by an objecting parent. This change, for 
example, will preclude a parent with sole custody, ordinarily entitled 
to apply for a child's passport under the Act, from obtaining a 
passport if the custody order contains a limitation on the minor's 
ability to travel.

General Requirement for Both Parents To Consent to a Passport for a 
Minor Child

    Under current passport regulations, either parent or the legal 
guardian, regardless of citizenship, may execute a passport application 
on behalf of a minor under 13 years of age; minors 13 years of age and 
over are expected to execute their own passport applications. To 
implement the statutory requirement that both parents must execute the 
passport application on behalf of a child under the age of 14, the 
proposed rule raises the age at which a minor should execute his or her 
own application to 14. The proposed rule adds the requirement that both 
parents execute a passport application on behalf of a minor under the 
age of 14.
    When only one parent is available to execute the application, that 
parent must provide, under penalty of perjury, documentary evidence 
demonstrating that he or she has sole legal custody of the child or has 
the written consent of the other parent to the issuance of the 
passport. Documents supporting sole custody or the authority to obtain 
a passport include, but are not limited to: a birth certificate or 
other official birth registration which names only the applying parent; 
an adoption decree naming only the adopting parent; a court order 
granting sole custody to the applying parent if the order does not 
limit the minor's ability to travel; a court order specifically 
authorizing passport issuance, regardless of custodial arrangements; a 
declaration of incompetence of the non-applying parent by a court of 
competent jurisdiction; the non-applying parent's death certificate.
    A written statement of a parent not executing the passport 
application giving consent to the issuance of the passport will also be 
accepted at the discretion of the adjudicating officer who will take 
into account the totality of the circumstances in deciding whether to 
issue the passport.

Individuals Applying In Loco Parentis

    The Department has long recognized that there are instances when it 
is impossible for a parent to execute a passport application on behalf 
of a minor. Many children are in the physical custody of relatives or 
foster parents, as well as adoption agencies or child welfare agencies. 
In accepting applications executed on behalf of minors by individuals 
in loco parentis, it has been the Department's policy to require that 
those individuals provide a notarized statement or affidavit from a 
parent authorizing the applying person to execute the application.
    The new regulation will require that the individual executing the 
passport application on behalf of a minor under age 14 in loco parentis 
present a notarized statement from both parents or from the parent 
exercising parental authority. In instances when only one parent grants 
in loco parentis, the same documentary evidence required when only one 
parent executes a passport application on behalf of a minor under age 
14 to demonstrate that person's sole authority should accompany the 
application.

[[Page 60134]]

Exceptions to the Two Parent Signature Requirement

    The statute provides for two exceptions to the general requirement: 
(1) exigent circumstances involving the health and welfare of the 
child; or, (2) when the Secretary of State determines that issuance of 
a passport is warranted by special family circumstances.
    Exigent circumstances are defined as time-sensitive circumstances 
when the inability of the minor to obtain a passport would jeopardize 
the health or welfare of the minor. The requirement of establishing the 
second parent's consent to issuance of the passport or formal 
documentation of the reason for the absence of the second parent may be 
waived in such circumstances.
    Examples of exigent circumstances include, but are not limited to: 
instances when the minor must travel to receive emergency medical 
treatment; when a minor's passport is lost or stolen while traveling 
accompanied by only one parent or traveling unaccompanied with a 
school, church or other group; when the minor needs to travel because 
of the serious illness of a person in the minor's immediate family, or, 
when failure to issue would prevent the child from returning to the 
U.S. and there is insufficient time before travel is necessary to 
obtain the normally required documentation.
    Special family circumstances are defined as circumstances when the 
minor's family situation prevents one or both of the parents from 
executing the passport application. As with the exigent circumstance 
exception, the requirement of establishing the second parent's consent 
or formal documentation of the reason for the absence of the second 
parent is waived. Examples of special family circumstances include, but 
are not limited to, instances when the second parent is unable to apply 
for the passport in person or to provide a statement authorizing the 
application and issuance of the passport because he or she has 
abandoned the family or is unavailable due to serious health problems. 
Individuals claiming a special family circumstance will be required to 
provide a statement, under penalty of perjury, explaining the special 
family circumstance.
    Decisions to apply this exception will be made by the Deputy 
Assistant Secretary for Passport Services or a senior passport 
adjudicator within the United States, or by the Deputy Assistant 
Secretary for Overseas Citizens Services or a consular officer if 
abroad.

Special Considerations for Passport Applications Executed Overseas

    While the great majority of passports are issued within the United 
States, a significant number are issued annually to U.S. citizens 
living and traveling overseas. We anticipate that parents overseas 
generally will comply fully with the requirements of the law in much 
the same manner as parents applying within the United States. 
Nonetheless, in proposing these regulations, the Department has sought 
to take into account, and provide for, certain differing circumstances 
that pertain in much greater measure to the issuance of U.S. passports 
overseas. For example, exigent circumstances would include instances 
when a delay in departure would pose a grave danger for the minor 
abroad. Civil unrest, natural disaster, war, or invasion may make 
imperative the urgent travel or evacuation of U.S. citizens, 
particularly minors, from such regions. In less dramatic fashion, 
exigent circumstances could encompass a situation when, for example, a 
child traveling with a school group loses his or her passport and would 
need a replacement to remain with the group in its ongoing travel. 
Despite the lack of time to procure documents or statements relating to 
parental consent, it is essential that a passport be issued quickly in 
both cases, and as the exigent circumstances exception in subsection 
(b) permits, to protect the health and welfare of the minor.
    Circumstances overseas can differ in another respect. Specifically, 
the U.S. consular officer may have access to post registration records 
that relate to family situations. Particularly in smaller countries, an 
officer may have personal knowledge of a family situation, e.g., that 
the child is in the care of an individual in loco parentis or the fact 
that a parent is widowed, which would be relevant in a situation when 
documentary evidence was not available or could not be obtained in a 
timely fashion. Accordingly, the proposed rule will give the Department 
flexibility to utilize such information in this and other instances, 
consistent with the consular officer's exercise of good judgment, as 
allowed by the statute's reference to special family circumstances.

Provisions To Harmonize Other Parts of the Regulations With the 
Two-Parent Requirement

    Section 51.1 is amended to provide a definition of ``passport 
application''. Section 51.21 is amended to incorporate the two-parent 
signature requirement to passport renewals by minors under the age of 
14 and to provide for compliance with the two-parent signature 
requirement in mail-in applications abroad. Section 51.27 is amended to 
raise the age after which a minor should execute his or her own 
passport application from 13 to 14. Sections 51.40 and 51.41 are 
amended to bring them into conformity with current passport practice 
regarding individuals included in the passport and to comply with the 
requirements of the Act. Since 1981, U.S. passports have been issued to 
document only the bearer: they do not include any other person. The 
regulation is amended to reflect that change. Section 51.41 is also 
amended to require applicants under the age of 14, whether applying for 
their first passport or for a renewal, to present evidence of parentage 
in addition to evidence of nationality. This will assist in the 
adjudication not only of the citizenship of the minor under age 14, but 
in the determination of the parent(s) entitled to obtain a passport on 
the minor's behalf. The document should include the name, date and 
place of birth of the child and the name(s) of the parent(s).

Regulatory Flexibility Act; Paperwork Reduction Act; Federalism 
Assessment; E.O. 12988

    These proposed changes to the regulations are 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). 
They impose certain information collection requirements under the 
provisions of the Paperwork Reduction Act, 44 U.S.C. Chapter 35. These 
rules have no 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 
consistent with its objectives.

List of Subjects in 22 CFR Part 51

    Administrative practice and procedure, Passports and visas, 
Reporting and recordkeeping requirements.

    Accordingly, for the reasons set forth in the preamble, 22 CFR Part 
51 is amended as follows:

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;

[[Page 60135]]

sec. 236, Pub. L.106-113, 113 Stat. 1937-422; 18 U.S.C 1621(a)(2).

    In Sec. 51.1, redesignate paragraphs (g) and (h) as paragraphs (h) 
and (i), respectively, and add a new paragraph (g) to read as follows:
* * * * *


Sec. 51.1  Definitions.

* * * * *
    (g) Passport Application means the passport application form for a 
United States passport, filled in, subscribed and executed as 
prescribed by the Secretary pursuant to 22 U.S.C. 213, and all 
documents, photos and statements submitted with the form or thereafter 
in support of the application. The information provided in the passport 
application and supporting submissions, whether provided 
contemporaneously with the application form or at any time thereafter, 
is subject to the penalties of perjury under all applicable criminal 
statutes.
* * * * *
    3. Revise Sec. 51.21(d)(4)(ii) to read as follows:


Sec. 51.21  Execution of passport application.

* * * * *
    (d) * * *
    (4) * * *
    (ii) Mail applications abroad on behalf of minors under the age of 
14 comply must with the requirements of Sec. 51.27.
* * * * *
    4. In Sec. 51.27, revise paragraph (b) and paragraph (d)(1)(i) 
introductory text to read as follows:


Sec. 51.27  Minors.

* * * * *
    (b) Execution of the application for minors.
    (1) Minors 14 years of age and above. A minor aged 14 and above is 
required to execute an application on his or her own behalf unless in 
the judgment of the person before whom the application is executed it 
is not desirable for the minor to execute his or her own application. 
In such a case, it must be executed on behalf of the minor aged 14 and 
above by a parent or guardian of the minor or by a person in loco 
parentis.
    (2) Minors under the age of 14.
    (i) Both parents or each of the child's legal guardians, if any, 
must execute the application on behalf of a minor under age 14, under 
penalty of perjury, and provide documentary evidence demonstrating that 
they are the parents or guardian, except as specifically provided in 
this section.
    (ii) A passport application may be executed on behalf of the minor 
under age 14 by just one parent or legal guardian if such person 
provides, under penalty of perjury--
    (A) Documentary evidence that such person has sole custody of the 
child; or
    (B) A written statement of consent from the non-applying parent or 
guardian, if applicable, to the issuance of the passport.
    (iii) An individual may apply in loco parentis on behalf of a minor 
under age 14 by submitting a notarized written statement or an 
affidavit from both parents specifically authorizing the application. 
If only one parent provides the written statement or affidavit, 
documentary evidence that such parent has sole custody of the child 
must be presented.
    (iv) Documentary evidence in support of an application executed on 
behalf of a minor under age 14 by one parent or person in loco parentis 
under paragraphs (b)(2)(ii) and (iii) of this section may include, but 
is not limited to, the following:
    (A) A birth certificate providing the minor's name, date and place 
of birth and the name of the sole parent;
    (B) A Consular Report of Birth Abroad of a Citizen of the United
    States of America (FS-240) or a Certification of Report of Birth of 
a United States Citizen (DS-1350) providing the minor's name, date and 
place of birth and the name of the sole parent;
    (C) An adoption decree showing only one adopting parent;
    (D) An order of a court of competent jurisdiction granting sole 
custody to the applying parent or legal guardian and containing no 
travel restrictions inconsistent with issuance of the passport;
    (E) A judicial declaration of incompetence of the non-applying 
parent;
    (F) An order of a court of competent jurisdiction specifically 
permitting the applying parent's or guardian's travel with the child; 
or
    (G) A death certificate for the non-applying parent,
    (v) In instances when a parent submits a custody decree invoking 
the provisions of paragraph (d)(1) of this section, the judicial 
limitations on the minor's ability to travel contained in the custody 
decree will be given effect.
    (vi) The requirements of paragraphs (b)(2)(i), (ii) and (iii) of 
this section may be waived in cases of exigent or special family 
circumstances, as determined by a Department official designated under 
paragraph (b)(2)(vi)(D) of this section.
    (A) Exigent circumstances are defined as time sensitive 
circumstances when the inability of the minor to obtain a passport 
would jeopardize the health and safety, or welfare of the minor or 
would result in the child being separated from the traveling unit.
    (B) Special family circumstances are circumstances when the minor's 
family situation makes it impossible for one or both of the parents to 
execute the passport application.
    (C) Any person applying for a passport for a child under age 14 
under this paragraph must submit with the application a written 
statement subscribed under penalty of perjury describing the exigent or 
special family circumstances to be taken into consideration in applying 
an exception.
    (D) Determinations under this paragraph may be made by a senior 
passport adjudicator or the Deputy Assistant Secretary for Passport 
Services for an application filed within the United States. A consular 
officer or the Deputy Assistant Secretary for Overseas Citizens 
Services may make the determination for applications filed abroad.
    (vii) Nothing contained in this section shall prohibit any 
Department official adjudicating a passport application on behalf of a 
minor from requiring an applicant to submit other documentary evidence 
deemed necessary to establish the applying adult's entitlement to 
obtain a passport on behalf of a minor under the age of 14 in 
accordance with the provisions of this section.
* * * * *
    (d) * * *
    (1)(i) When there is a dispute concerning the custody of a minor 
under age 18, a passport may be denied if the Department has on file, 
or is provided in the course of a passport application executed on 
behalf of a minor, a copy of a court order granted by a court of 
competent jurisdiction in the United States or abroad which:
* * * * *
    5. Revise Sec. 51.40 to read as follows:


Sec. 51.40  Burden of proof.

    The applicant has the burden of proving that he or she is a 
national of the United States.
    6. Revise Sec. 51.41 to read as follows:


Sec. 51.41  Documentary evidence.

    (a) Every application shall be accompanied by evidence of the U.S. 
nationality of the applicant.
    (b) Minors under the age of 14, whether applying for a passport for 
the first time or for a renewal, must provide documentary evidence of 
U.S. nationality showing the minor's name, date and place of birth, and 
the names of the parent or parents.


[[Page 60136]]


    Dated: September 27, 2000.
George C. Lannon,
Acting Assistant Secretary for Consular Affairs, U.S. Department of 
State.
[FR Doc. 00-25782 Filed 10-6-00; 8:45 am]
BILLING CODE 4710-06-P