[Federal Register Volume 66, Number 107 (Monday, June 4, 2001)]
[Rules and Regulations]
[Pages 29904-29907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-13845]


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DEPARTMENT OF STATE

Bureau of Consular Affairs

22 CFR Part 51

[Public Notice 3672]


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

AGENCY: Bureau of Consular Affairs, State Department.

ACTION: Final rule.

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SUMMARY: This rule finalizes the proposed rule published on October 10, 
2000. The rule brings passport regulations into conformity with current 
practice and implements 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 to this 
requirement 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.

EFFECTIVE DATE: July 2, 2001.

FOR FURTHER INFORMATION CONTACT: John Hotchner, Director, Office of 
Passport Policy, Planning and Advisory Services, 2401 E. Street, NW., 
Room 917, Washington, DC 20522-0907.

SUPPLEMENTARY INFORMATION: The Department published a proposed rule, 
Public Notice 3428 at 65 FR 60132, Oct. 10, 2000, with a request for 
comments, amending numerous sections of Part 51 of Title 22 of the Code 
of Federal Regulations. The rule was proposed primarily to implement 
provisions of Section 236 of the Admiral James W. Nance and Meg Donovan 
Foreign Relations Authorization Act, Public Law 106-113, 113 Stat. 
1501A-420 (22 U.S.C. 213n), although it also makes procedural changes 
to harmonize other parts of the regulations with the two-parent consent 
requirement. The rule was discussed in detail in Public Notice 3428, as 
were the Department's reasons for the other changes to the regulations. 
The Department is now promulgating a final rule with minor changes from 
the proposed rule (for example, the fact that the rule applies to both 
renewal and first time passport applications is clarified) and no 
substantive change.

Analysis of Comments

    The proposed rule was published for comments on October 10, 2000 at 
65 FR 60132. The comment period closed November 6, 2000, but the 
Department continued to accept comments (including by electronic mail) 
until November 28, 2000, to accommodate delays in publication and mail 
delivery.
    The Department received forty-nine (49) comments regarding the 
proposed change in the procedures for applying for passports on behalf 
of minors under age 14. Most were received via e-mail from individuals 
living abroad. In addition to expressing an opinion, most of the 
comments also contained specific questions about implementation. The 
majority--26--were opposed to the concept of requiring both parents to 
apply for a passport on behalf of a minor under age 14, but offered few 
specific comments on the draft regulation. Four commentators were in 
favor of the requirement; one saw both sides of the issue; and 7 just 
asked questions but made no comment.
    The majority of the comments expressed concern about the 
inconvenience to families who are not involved in a child custody 
dispute and for whom it might be difficult to have both parents apply 
for a passport on behalf of a minor under age 14. For example, in some 
cases in which a family lives far from a U.S. embassy, passport agency, 
or acceptance facility, it may cause hardship to the entire family to 
require both parents to travel to execute the application.
    The regulation expressly provides for this circumstance by allowing 
the applying parent to present a simple written statement from the non-
applying parent giving consent to the issuance of the passport. The 
written statement will be presented by the applying parent under 
penalty of perjury and will become a part of the minor's permanent 
passport file.
    Generally, the written statement consenting to the issuance of the 
passport will be accepted without further questions, but additional 
evidence may be required if the adjudicating officer has reason to 
suspect that the statement is not true. If the non-applying parent 
neither signs the application nor provides a written statement 
consenting to the issuance of a passport (for whatever reason), the 
applying parent may submit his or her own written statement, made under 
penalty of perjury, explaining why the other parent did not or could 
not participate in the child's passport application. The adjudicating 
officer will then consider whether this explanation falls within the 
parameters of the special family circumstances exception. If the 
determination is made that it does not fall under that exception, the 
passport will be denied. We anticipate that there will be very few 
instances where passports will be denied under these circumstances.
    Another concern was raised by single parents who are no longer in 
contact with the minor's other parent.
    The regulation provides that parents need only present documentary 
evidence of sole custody, i.e., a birth certificate or adoption decree 
listing

[[Page 29905]]

only one parent, evidence of the death of a parent, a decree granting 
sole custody, or a court order terminating the other parent's parental 
rights. The Department will consider other documentary evidence as 
warranted by the circumstances. If no documentary evidence is 
available, the applying parent may submit a written statement under 
penalty of perjury setting out the circumstances that prevent him or 
her from presenting the requested documentation.
    Some comments referred to the ability of non-U.S. citizens to 
obtain a U.S. passport for their U.S. citizen child or to inhibit the 
issuance of their child's passport when applied for by the U.S. citizen 
parent.
    The fact that a parent is not a U.S. citizen does not limit his or 
her ability to obtain a U.S. passport on behalf of his or her minor 
U.S. citizen child. Similarly, a non-U.S. citizen parent may request 
that no U.S. passport be issued to a U.S. citizen minor if that parent 
has legal custody of the child. The new regulation does not change the 
rights of parents in this respect.
    The Department has a long-standing program that provides for 
parental notification and the denial of a passport to a minor of any 
age who is the subject of a child custody dispute. The Children's 
Passport Issuance Alert Program enables the Department of State's 
Office of Children's Issues to notify a parent or legal guardian, when 
requested, before issuing a U.S. passport for his or her child. At the 
request of a custodial or non-custodial parent, legal guardian, legal 
representative, or a court of competent jurisdiction, the Department 
will enter the child's name into its passport name check clearance 
system. This allows the Department to alert the requesting parent if a 
passport application is received for the child. To deny the passport 
application, the Department must have on file a written request for 
denial from a parent, legal guardian, or an officer of the court, and a 
complete copy of a temporary or permanent court order that provides 
for: (1) Sole legal custody to the requesting parent; (2) joint custody 
to both parents (which the Department treats as inherently requiring 
both parents to consent to passport issuance); or (3) a restriction on 
the child's travel or a requirement of that both parents or the 
appropriate court give permission to travel. The Department strongly 
encourages parents who fear that their child may be abducted to 
continue to make use of this program.
    The public comments expressed concern that some U.S. citizen 
children are dual citizens and may be entitled to a foreign passport.
    A U.S. citizen child may have another nationality because the child 
was born abroad, because one of the child's parents acquired a foreign 
nationality at birth, or because one of the child's parents acquired a 
second nationality through naturalization in another country. 
Acquisition of foreign nationality may occur in these cases without 
regard to the wishes of the U.S. citizen parent of the child. 
Similarly, the child of foreign nationals may acquire U.S. citizenship 
regardless of the child's parent's wishes (e.g., if the child is born 
in the United States). The inability to obtain a U.S. passport will not 
necessarily prevent a dual national child from obtaining and traveling 
on a foreign passport. While some foreign countries will give effect to 
U.S. custody orders, they are generally free to issue passports to 
their nationals, including minor children.

The Comments Also Contained Specific Questions That Are Addressed Below

    Will currently valid passports held by minors under age 14 continue 
to be valid after the two-parent application requirement goes into 
effect?
    Yes, currently valid passports will continue to be valid until 
their expiration date, generally five years from the date of issuance. 
However, when those passports expire, the two-parent consent 
requirement will apply for new or renewal passport requests if the 
child is still under age 14.
    Once a passport is actually issued, will there need to be two 
signatures in the passport in order for it to be valid?
    No. Only one parent need sign the passport.
    Can the rule apply only to renewals and not first time applicants?
    No. The statute specifically applies to all passports issued for 
minors under age 14.
    Do the new statute and its implementing regulation require both 
parents to travel with their minor?
    No. The statute and regulation apply only to the application for 
the passport, not to the actual use of the passport.
    Will U.S. citizen children who are unable to obtain a U.S. passport 
due to lack of the second parent's permission be granted visas in their 
foreign passports to enable travel to the United States?
    No. U.S. law specifically prohibits the issuance of a U.S. visa to 
a U.S. citizen or national.
    Will additional fees be charged for the two signatures?
    No, the same passport fee for minors remains in effect.
    What is considered an exigent circumstance?
    Some examples of exigent circumstances would include, but not be 
limited to: (1) A minor who needs to travel due to a serious illness of 
a person in the minor's immediate family; (2) a minor who must travel 
to receive emergency medical treatment; (3) a minor who has his or her 
passport lost or stolen while traveling abroad accompanied by only one 
parent, or traveling unaccompanied by a parent or parents with a 
school, church or other group, and who needs to travel immediately to 
another overseas destination.
    What is considered a special family circumstance?
    Examples of special family circumstances include, but are not 
limited to: (1) A situation in which the non-applying parent has 
abandoned the family, and his or her whereabouts are unknown; or (2) a 
situation in which the non-applying parent is unable to give written 
consent due to serious health problems. Instances involving 
inconvenience to the non-applying parent will not be considered a 
special family circumstance, however. A non-applying parent who cannot 
personally appear at an acceptance facility, passport agency, or U.S. 
embassy, consulate or consular agency abroad to sign the minor's 
application may send the signed consent statement by overnight delivery 
if the minor's travel is urgent, or fax it to the applying parent or 
passport issuing office if the minor's travel is imminent.
    When both parents have abandoned the minor or are deceased and 
there has been no formal or legal determination of custody or 
guardianship (such as when a grandparent, aunt, uncle, brother or 
sister has assumed responsibility), documentation of legal custody or 
guardianship must be obtained and submitted. If exigent circumstances 
apply to a child in this situation, a passport would be issued without 
such documentation if failure to do so would cause grave danger to the 
child. Examples would include medical evacuation of a child from a 
foreign country to the United States or an emergency evacuation of U.S. 
citizens from a foreign country during a period of civil unrest.

Additional Comments

    In crafting the regulations to implement the statute uniformly and 
fairly, the Department sought to implement the statute in a way that 
will: (1) Use the passport application process as a vehicle for 
deterring parental child abduction; (2) minimize any

[[Page 29906]]

unnecessary inconvenience to parents in the majority of cases that do 
not involve parental abduction issues; and (3) fulfill the Department's 
responsibilities for passport issuance and the protection of U.S. 
citizens abroad. We feel that the final regulation meets those goals. A 
central feature of the regulation is that it puts the full burden of 
responsibility for the bona fides of the documentation submitted and 
the truthfulness of representations made therein on the applying parent 
or legal guardian, who will be subject to criminal penalties for making 
false statements to procure a passport. Although not obligated to do so 
in any particular case, the Department reserves its right to 
investigate or verify the truthfulness of assertions made during the 
application process, or to confirm the validity of documents presented 
in support of the application.

Implementation Date

    The effective date of this regulation is July 2, 2001. This date 
will give the Department time to redesign, obtain required approval 
under the Paperwork Reduction Act for, and print a new passport 
application form with signature blocks for both parents' signatures. It 
will also avoid introducing a new requirement into the application 
process during the peak pre-summer travel period. Finally, it will give 
the Department sufficient time to disseminate information regarding the 
new requirement.

Regulatory Findings

Administrative Procedure Act

    The Department is publishing this rule as a final rule after it was 
published as a proposed rule on October 10, 2000 (see SUPPLEMENTARY 
INFORMATION).

Regulatory Flexibility Act

    The Department of State, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by 
approving it, certifies that this rule will not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Act of 1995

    This rule will not result in the expenditure by State, local and 
tribal governments, in the aggregate, or by the private sector, of $1 
million or more in any year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Act of 1996. This rule will not 
result in an annual effect on the economy of $100 million or more; a 
major increase in costs or prices; or significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign 
based companies in domestic and import markets.

Executive Order 12866

    The Department of State does not consider this rule to be a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review.

Executive Order 13132

    This regulation will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this rule does not have 
sufficient federalism implications to require consultations or warrant 
the preparation of a federalism summary impact statement.

Paperwork Reduction Act

    The reporting or recordkeeping action required from the public 
under the rule requires the approval of the Office of Management and 
Budget under the Paperwork Reduction Act. A form for documenting the 
written consent of a parent not applying or special circumstances why 
such parent's written consent cannot be obtained is being forwarded to 
OMB as required.

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, 213, 2651a, 2671(d)(3), 2714 and 
3926; 31 U.S.C. 9701; E.O. 11295, 3 CFR, 1966-1970 Comp., p. 570; 
sec. 236, Pub. L.106-113, 113 Stat. 1501A-430; 18 U.S.C. 1621(a)(2).


    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 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. A person providing false information as part of a passport 
application, whether contemporaneously with the application form or at 
any other time, is subject to prosecution for passport fraud or perjury 
under all applicable criminal statutes, including but not limited to 18 
U.S.C. 1001, 1541, et seq. and 1621.
* * * * *

    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 must comply with the requirements of Sec. 51.27;
* * * * *

    4. In Sec. 51.27, revise paragraph (b) and paragraph (d)(l)(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) Except as specifically provided 
in this section, both parents or each of the child's legal guardians, 
if any, whether applying for a passport for the first time or for a 
renewal, must execute the application on behalf of a minor under age 14 
under penalty of perjury, and provide documentary evidence of parentage 
showing the minor's name, date and place of birth, and the names of the 
parent or parents.
    (ii) A passport application may be executed on behalf of a minor 
under age

[[Page 29907]]

14 by just one parent or legal guardian if such person provides, under 
penalty of perjury:
    (A) Documentary evidence that such person is the sole parent or 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 a notarized 
affidavit from both parents specifically authorizing the application. 
However, if only one parent provides the notarized written statement or 
notarized 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;
    (G) A death certificate for the non-applying parent; or
    (H) A copy of a Commitment Order or comparable document for an 
incarcerated 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)(E) of this section.
    (A) Exigent circumstances are defined as time-sensitive 
circumstances in which 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 rest of his or her 
traveling party.
    (B) ``Time-sensitive'' generally means that there is not enough 
time before the minor's emergency travel to obtain either the required 
consent of both parents/guardians or documentation reflecting a sole 
parent's/guardian's custody rights.
    (C) Special family circumstances are circumstances in which the 
minor's family situation makes it impossible for one or both of the 
parents to execute the passport application.
    (D) A parent applying for a passport for a child under age 14 under 
this paragraph (b)(2)(vi) must submit with the application a written 
statement subscribed under penalty of perjury describing the exigent or 
special family circumstances the parent believes should be taken into 
consideration in applying an exception.
    (E) Determinations under this paragraph (b)(2)(vi) may be made by a 
senior passport adjudicator or the Deputy Assistant Secretary for 
Passport Services for an application filed within the United States, or 
a consular officer or the Deputy Assistant Secretary for Overseas 
Citizens Services for an application 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 regulation.
* * * * *
    (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 from 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.

    Every application shall be accompanied by evidence of the U.S. 
nationality of the applicant.

    Dated: May 10, 2001.

    For the Secretary of State.
Mary A. Ryan,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 01-13845 Filed 6-1-01; 8:45 am]
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