[Federal Register Volume 82, Number 239 (Thursday, December 14, 2017)]
[Proposed Rules]
[Pages 58778-58783]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26751]


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DEPARTMENT OF STATE

22 CFR Parts 50 and 51

[Public Notice 9804]
RIN 1400-AD54


Passports

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: This proposed rule provides various changes and updates to the 
Department of State passport rules. The proposed rule incorporates 
statutory passport denial and revocation requirements for certain 
convicted sex offenders. It notes that, notwithstanding the legal bases 
for denial or revocation of a passport, the Department may issue a 
passport for direct return to the United States. It sets out the 
Department's procedures for denying and cancelling Consular Reports of 
Birth Abroad. Finally, the proposed rule provides additional 
information relating to the conduct of review hearings.

DATES: The Department will accept comments on the proposed regulation 
up to February 12, 2018.

ADDRESSES: Submit comments by any of the following methods:
     Internet: At www.regulations.gov, search for this notice 
by searching for Docket No. DOS-2016-0080 or RIN 1400-AD54.
     By mail: Director, Office of Legal Affairs and Law 
Enforcement Liaison, Passport Services, U.S. Department of State, 44132 
Mercure Circle, P.O. Box 1227, Sterling, VA 20166-1227
     By email: Submit comments to: PassportRules@state.gov.

FOR FURTHER INFORMATION CONTACT: Anita Mody, Office of Legal Affairs, 
Passport Services, (202) 485-6500. Hearing- or speech-impaired persons

[[Page 58779]]

may use the Telecommunications Devices for the Deaf (TDD) by contacting 
the Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION: The Department is proposing to amend various 
sections of Subparts A, E, and F within Part 51 and Subpart A within 
Part 50 of Title 22 of the CFR.
    Consistent with 22 U.S.C. 211a, the proposed rule in Sec.  
51.4(g)(1) revises the previous rule to now state that a passport is 
invalid when the passport revocation notification is approved. This 
revision leaves unchanged the Department's obligation, set forth at 
Sec.  51.65(a), to send notification of the revocation, and the reasons 
therefor, in writing.
    The proposed new provision in Sec.  51.4(g)(8) provides that a 
passport is invalid when a Certificate of Loss of Nationality is 
approved. This provision, consistent with 8 U.S.C. 1481(a), specifies 
that a passport is not valid once the Department approves the bearer's 
formal renunciation of nationality.
    The proposed rule incorporates statutory passport denial and 
revocation requirements for certain convicted sex offenders as codified 
at 22 U.S.C. 212a.
    Proposed Sec.  51.60(h) requires denial of a passport to an 
individual convicted under 18 U.S.C. 2423 and who used a passport or 
otherwise crossed an international border in committing the underlying 
offense. In accordance with 22 U.S.C. 212a, upon timely notification by 
the Attorney General, such an individual's passport application will be 
denied during the period covering the date of conviction and ending on 
the later of (1) the date on which the individual is released from a 
sentence of imprisonment relating to the offense; or (2) the end of a 
period of parole or other supervised release of the covered individual 
relating to the offense. However the Department may issue a passport in 
emergency circumstances or for humanitarian reasons, or may issue a 
limited passport valid only for direct return to the United States.
    Proposed Sec.  51.60(i) notes the Department's authority, 
consistent with 22 U.S.C. 217a, to, as appropriate, issue limited 
validity passports good only for direct return to the United States, 
notwithstanding any prior revocation or denial.
    Proposed Sec.  51.62(d) requires revocation of a passport 
previously issued to an individual convicted under 18 U.S.C. 2423 and 
who used a passport or otherwise crossed an international border in 
committing the underlying offense. In accordance with 22 U.S.C. 212a, 
upon timely notification by the Attorney General, such an individual's 
passport will be revoked once convicted and until the later of (1) the 
date on which the individual is released from a sentence of 
imprisonment relating to the offense; or (2) the end of a period of 
parole or other supervised release of the covered individual relating 
to the offense.
    Proposed Sec.  51.62(c), deriving from the Department's existing 
statutory authority including under 8 U.S.C. 1504, sets out that the 
Department may cancel Consular Reports of Birth Abroad that were 
obtained illegally, fraudulently or erroneously; were created through 
illegality or fraud; have been fraudulently altered or misused; or 
where the bearer of the document is not a U.S. national. Specific 
reference to cancellation of Consular Reports of Birth Abroad has been 
added to the provisions on revocation or limitation of passports at 
Sec.  51.62, notification of such action at Sec.  51.65, the 
surrendering of passports at Sec.  51.66, and the right to a hearing in 
certain circumstances at Sec.  51.70(a).
    The proposed rule in Sec.  51.62(a)(1) also removes the reference 
to Sec.  51.28 concerning passports for minors, thereby removing the 
Department's discretion to revoke in circumstances where a U.S. 
passport may be denied under Sec.  51.28. Once parental consent is 
properly given and a passport issued, the Department has consistently 
taken the position that such a properly issued passport may not be 
revoked upon a subsequent withdrawal of parental consent.
    The proposed rule in Sec.  51.70(b) revises the non-exhaustive list 
of provisions under which a hearing will not be provided if the 
Department denies, restricts, revokes, cancels or invalidates a 
passport or Consular Report of Birth Abroad under Sec. Sec.  51.60(a), 
51.60(f), 51.60(g), 51.61(a), 51.62(b), 51.62(c)(3), 51.62(d), or 
51.64, such that it is consistent with other revisions made as a part 
of this notice. Section 51.60(a) refers to instances where the 
Department may not issue a passport because the applicant is in default 
on a repatriation loan or certified to be in arrears of child support. 
In accordance with Sec.  51.60(f), the Department may deny an 
application if the individual has failed to provide his or her social 
security number on a passport application, or purposefully provides an 
incorrect number. In accordance with Sec.  51.60(g), the Department 
shall not issue a passport to a covered sex offender as defined by 22 
U.S.C. 212b(c)(1). Section 51.61(a) specifies that the Department may 
not issue a passport to an applicant subject to imprisonment or 
supervised release as a result of a federal or state felony drug 
offense, if the individual used the passport or crossed an 
international border in committing the offense. Sections 51.62(b) and 
51.62(c)(3) address where the Department revokes a passport, or cancels 
a Consular Report of Birth Abroad, after determining the individual is 
not a U.S. national, or revokes the passport after being on notice that 
an individual's certificate of citizenship or naturalization has been 
cancelled. Under Sec.  51.62(d), the Department revokes a U.S. passport 
for individuals convicted of illicit sexual conduct under 18 U.S.C. 
2423, during the covered period defined by 22 U.S.C. 212a, and who used 
a passport or crossed an international border in committing the 
offense. Section 51.64 refers to specially validated passports for 
travel to restricted areas.
    The proposed rule amends Sec.  50.7(d), which currently includes 
procedures for cancellation of Consular Reports of Birth Abroad and 
hearings for such cancellations, to include a reference to Sec.  51.60 
through Sec.  51.74.
    The proposed rule in Sec.  51.65(a)-(c) notes that the procedures 
for providing notification of denials, revocation, or cancellation of 
passports also applies to Consular Reports of Birth Abroad, and 
specifies in proposed Sec.  51.65(c) that the Department may exercise 
its discretion to administratively re-open a previously filed passport 
or Consular Report of Birth Abroad application in order to issue the 
passport or Consular Report of Birth Abroad.
    In order to provide the public with additional information 
regarding the denial/revocation review hearing process, the proposed 
rule also provides further details and requirements for the conduct of 
review hearings and specifies that the set of circumstances for which 
hearings may be held include certain cancellations of Consular Reports 
of Birth Abroad. The proposed rule provides at Sec.  51.70(e) that the 
individual requesting the hearing may obtain one continuance of up to 
ninety days upon written request; and advises at Sec.  51.71 that the 
Department will provide copies of the evidence relied upon in denying, 
revoking, or cancelling the passport or Consular Report of Birth Abroad 
prior to the hearing. It specifies in Sec.  51.71(a) that the hearing 
officer will generally be a Department employee from the Bureau of 
Consular Affairs and that the hearing officer makes only preliminary 
findings of fact and recommendations and submits them to the Deputy 
Assistant Secretary for

[[Page 58780]]

Passport Services, or his or her designee in the Bureau of Consular 
Affairs. The proposed rule in Sec.  51.71(b)-(g) specifies the location 
of the hearing, and that failure to appear--either in person or through 
an attorney--at the hearing constitutes an abandonment of the request 
for the hearing; that there is no right to subpoena witnesses or to 
conduct discovery under the Federal Rules of Civil Procedure; and that 
passport hearings are not formal administrative hearings under the 
Administrative Procedure Act (APA). The Department is aware of no 
statute requiring that the provisions of 5 U.S.C. 554 apply to the 
hearing, and the Department has determined that such procedures will 
not be used. In addition, the proposed rule provides that individuals 
requesting hearings are responsible for the costs of any interpreters, 
who must be duly certified; and confirms that written briefs may be 
submitted prior to the hearing, but are not required. Proposed Sec.  
51.71(h) specifies that the purpose of the hearing is to provide the 
affected individual with an opportunity to challenge the Department's 
decision; that the burden of production at the hearing is on the 
Department; and that the affected individual bears the burden of 
persuasion at the hearing to prove by a preponderance of the evidence 
that the Department improperly revoked the passport, denied the 
passport application, or cancelled the Consular Report of Birth Abroad 
based on the facts at the time such action was taken. The proposed rule 
in Sec.  51.72 notes that the hearing officer's preliminary findings 
and recommendation shall not be considered part of the record unless 
adopted by the Deputy Assistant Secretary for Passport Services or his 
or her designee. The proposed rule in Sec.  51.73 adds ``interpreter'' 
to the list of individuals able to be present at the hearing, and 
changes ``official reporters'' to ``the reporter transcribing the 
hearing.'' Under the proposed rule in Sec.  51.74, the final decision 
is made by the Deputy Assistant Secretary for Passport Services, or his 
or her designee, based on his or her review of the record of the 
hearing, findings of fact and recommendations of the hearing officer, 
and legal and policy considerations he or she deems relevant.
    The proposed rule also amends Sec.  50.11 to include further 
instruction on where to submit an appeal arising out of a denial of an 
application for a certificate of identity.

Regulatory Findings

Administrative Procedure Act

    The Department is publishing this rule as a proposed rule, with 60 
days for public comments.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    The Department certifies that this proposed rule is not expected to 
have a significant impact on a substantial number of small entities 
under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 601 et 
seq., and Executive Order 13272, section 3(b), as the rule being 
amended covers only individuals.

The Small Business Regulatory Enforcement Fairness Act of 1996

    This proposed rule is not a major rule, as defined by 5 U.S.C. 804, 
for purposes of congressional review of agency rulemaking. This rule 
would not result in an annual effect on the economy of $100 million or 
more; a major increase in costs or prices; or adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of United States-based companies to compete with foreign-based 
companies in domestic and export markets.

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532 generally requires agencies to prepare a statement before 
proposing any rule that may result in an annual expenditure of $100 
million or more by State, local, or tribal governments, or by the 
private sector. This proposed rule does not result in any such 
expenditure nor will it significantly or uniquely affect small 
governments.

Executive Orders 12372 and 13132: Federalism

    This proposed rule does not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or the distribution of power and responsibilities among the 
various levels of government. Nor will the rule have federalism 
implications warranting the application of Executive Orders 12372 and 
13132.

Executive Orders 12866 and 13563

    The Department has reviewed this proposed rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866, and determined that the benefits of the proposed 
rule justify its costs. The Department does not consider the proposed 
rule to be an economically significant regulatory action within the 
scope of section 3(f)(1) of the Executive Order. The Department has 
considered this proposed rule in light of Executive Order 13563 and 
affirms that this proposed rule is consistent with the guidance 
therein.
    The proposed rule revises the Department's determination of when a 
passport is considered invalid when a passport is revoked or a 
Certificate of Loss of Nationality is approved. Further, the proposed 
rule presents the public with additional information regarding passport 
and Consular Report of Birth Abroad denial, cancellation and revocation 
hearings. These changes supply the public with more details regarding 
the place, requirements, procedures and purpose of such hearings. The 
proposed rule also provides the public with further instruction on 
where to submit an appeal arising out of a denial of an application for 
a certificate of identity.
    The proposed rule provides further information to the public about 
the procedures for cancelling a Consular Reports of Birth Abroad. The 
proposed rule also notifies the public of the Department's statutory 
obligation to deny or revoke U.S. passports for certain convicted sex 
offenders as codified at 22 U.S.C. 212a. The Department finds that this 
proposed rulemaking implements Congressional intent as reflected in the 
Immigration and Naturalization Act, and that the benefits of the 
proposed rulemaking outweigh any costs to the public. The Office of 
Information and Regulatory Affairs has designated this proposed rule as 
non-significant within the meaning of Executive Order 12866. 
Consequently, no actions are required pursuant to Executive Order 
13771.

Executive Order 12988: Civil Justice Reform

    The Department has reviewed the proposed rule in light of sections 
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, 
minimize litigation, establish clear legal standards, and reduce 
burden.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments.

    The Department has determined that this proposed rule will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Section 5 of Executive Order 13175 do 
not apply to this rulemaking.

[[Page 58781]]

Paperwork Reduction Act of 1995

    This proposed rule does not revise or impose any collections of 
information requirements subject to the PRA.

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, for the reasons set forth in the preamble, the 
Department proposes to amend 22 CFR parts 50 and 51 as follows:

PART 50--NATIONALITY PROCEDURES

0
1. The authority section of part 50 continues to read as follows:

    Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104 and 1401 through 1504.
0
2. Amend Sec.  50.7 by revising paragraph (d) to read 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 Abroad may be cancelled in 
accordance with applicable provisions in 22 CFR 51.60 through 51.74.
0
3. Amend Sec.  50.11 by revising paragraph (b) to read as follows:


Sec.  50.11  Certificate of identity for travel to the United States to 
apply for admission.

* * * * *
    (b) When a diplomatic or consular officer denies an application for 
a certificate of identity under this section, the applicant may submit 
a written appeal to the Secretary through the U.S. embassy or consulate 
where the individual applied for the certificate of identity, stating 
the pertinent facts, the grounds upon which U.S. nationality is 
claimed, and his or her reasons for considering that the denial was not 
justified.

PART 51--PASSPORTS

0
4. The authority section of part 51 is revised to read as follows:

    Authority: 8 U.S.C. 1504; 18 U.S.C. 1621, 2423; 22 U.S.C. 211a, 
212, 212a, 212b, 213, 213n (Pub. L. 106-113 Div. B, Sec. 1000(a)(7) 
[Div. A, Title II, Sec. 236], 113 Stat. 1536, 1501A-430); 214, 214a, 
217a, 218, 2651a, 2671(d)(3), 2705, 2714, 2721, 3926; 26 U.S.C. 
6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of P. L. 
103-317, 108 Stat. 1760]; E.O. 11295, FR 10603; Pub. L. 114-119, 130 
Stat. 15; Sec. 1 of P. L. 109-210, 120 Stat. 319; Sec. 2 of P. L. 
109-167, 119 Stat. 3578; Sec. 5 of P. L. 109-472, 120 Stat. 3554; P. 
L. 108-447, Div. B, Title IV 118 Stat. 2896; P. L. 108-458, 118 
Stat. 3638, 3823.
0
5. Amend Sec.  51.4 by revising paragraph (g)(1) and adding paragraph 
(g)(8) to read as follows:


Sec.  51.4  Validity of passports.

* * * * *
    (g) * * *
    (1) The Department approves the revocation notification pursuant to 
Sec.  51.65(a); or
* * * * *
    (8) The Department approves a Certificate of Loss of Nationality 
for the passport holder pursuant to Sec.  50.40 and 8 U.S.C. 1481.
0
6. Revise the heading to Subpart E to read as follows:

Denial, Revocation, and Restriction of Passports and Cancellation of 
Consular Reports of Birth Abroad

0
7. Amend Sec.  51.60 by adding paragraphs (h) and (i) to read as 
follows:


 Sec.  51.60  Denial and restriction of passports.

* * * * *
    (h) The Department may not issue a passport, except a limited 
validity passport for direct return to the United States or in 
instances where the Department finds that emergency circumstances or 
humanitarian reasons exist, in any case in which the Department is 
notified by the Attorney General that, during the covered period as 
defined by 22 U.S.C. 212a:
    (1) The applicant was convicted of a violation of 18 U.S.C. 2423, 
and
    (2) The individual used a passport or passport card or otherwise 
crossed an international border in committing the underlying offense.
    (i) In appropriate circumstances, where an individual's passport 
application is denied or passport revoked consistent with this part, 
the Department may issue a limited validity passport good only for 
direct return to the United States.
0
8. Section 51.62 is revised to read as follows:


Sec.  51.62  Revocation or limitation of passports and cancellation of 
Consular Reports of Birth Abroad.

    (a) The Department may revoke or limit a passport when:
    (1) The bearer of the passport may be denied a passport under 22 
CFR 51.60 or 51.61 or any other applicable provision contained in this 
part;
    (2) The passport was illegally, fraudulently or erroneously 
obtained from the Department; or was created through illegality or 
fraud practiced upon the Department; or
    (3) The passport has been fraudulently altered or misused.
    (b) The Department may revoke a passport when the Department has 
determined that the bearer of the passport is not a U.S. national, or 
the Department is on notice that the bearer's certificate of 
citizenship or certificate of naturalization has been cancelled.
    (c) The Department may cancel a Consular Report of Birth Abroad 
when:
    (1) The Consular Report of Birth Abroad was illegally, fraudulently 
or erroneously obtained from the Department, or was created through 
illegality or fraud practiced upon the Department;
    (2) The Consular Report of Birth Abroad has been fraudulently 
altered or misused; or
    (3) The Department has determined that the bearer of the Consular 
Report of Birth Abroad is not a U.S. national, or the Department is on 
notice that the bearer's certificate of citizenship has been cancelled.
    (d) The Department shall revoke a U.S. passport in any case in 
which the Department is notified by the Attorney General, that during 
the covered period as defined by 22 U.S.C. 212a:
    (1) The applicant was convicted of a violation of 18 U.S.C. 2423, 
and
    (2) The individual used a passport or otherwise crossed an 
international border in committing the underlying offense.
    (3) Notwithstanding paragraph (d)(1) and (d)(2), the Department may 
issue a limited validity passport for direct return to the United 
States.
0
9. Revise Sec.  51.65 as follows:


Sec.  51.65  Notification of denial, revocation or cancellation of 
passports and Consular Reports of Birth Abroad.

    (a) The Department will send notice in writing to any person whose 
application for issuance of a passport or Consular Report of Birth 
Abroad has been denied, whose passport has been revoked, or whose 
Consular Report of Birth Abroad has been cancelled. The notification 
will set forth the specific reasons for the denial, revocation or 
cancellation and, if applicable, the procedures for review available 
under 22 CFR 51.70 through 51.74.
    (b) An application for a passport or Consular Report of Birth 
Abroad will be denied if an applicant fails to meet his or her burden 
of proof under the applicable regulations or otherwise does not provide 
documentation sufficient to establish entitlement to a passport or a 
Consular Report of Birth Abroad, or does not provide additional 
information as requested by the Department within the time provided in 
the notification by the Department that additional information is 
required. Thereafter, if an

[[Page 58782]]

applicant wishes the Department to adjudicate his or her claim of 
entitlement to a passport or Consular Report of Birth Abroad, he or she 
must submit a new application, supporting documents, and photograph, 
along with all applicable fees.
    (c) The Department may, in its sole discretion, administratively 
re-open a previously filed passport or Consular Report of Birth Abroad 
application in order to issue a passport or Consular Report of Birth 
Abroad.
0
10. Revise Sec.  51.66 to read as follows:


Sec.  51.66  Surrender of passport and/or Consular Report of Birth 
Abroad.

    The bearer of a passport that is revoked or of a Consular Report of 
Birth Abroad that is cancelled must surrender it to the Department or 
its authorized representative upon demand.
0
11. Revise Sec.  51.70 to read as follows:


Sec.  51.70   Request for hearing to review certain denials and 
revocations.

    (a) A person whose passport has been denied or revoked under 22 CFR 
51.60(b)(1) through (10), 51.60(c), 51.60(d), 51.61(b), 51.62(a)(1), or 
51.62(a)(2), or whose Consular Report of Birth Abroad is cancelled 
under Sec.  51.62(c)(1) or 51.62(c)(2), may request a hearing to review 
the basis for the denial, revocation, or cancellation, provided that 
the Department receives such a request, in writing, from such person or 
his or her attorney within 60 days of his or her receipt of the notice 
of the denial, revocation, or cancellation. Failure to timely request a 
hearing means the denial, revocation, or cancellation is the 
Department's final action.
    (b) The provisions of Sec. Sec.  51.70 through 51.74 do not apply 
to any action of the Department denying, restricting, revoking, 
cancelling or invalidating a passport or Consular Report of Birth 
Abroad, or in any other way adversely affecting the ability of a person 
to receive or use a passport or Consular Report of Birth Abroad, for 
reasons not set forth in Sec.  51.70(a), including, as applicable, 
those listed at:
    (1) Section 51.60(a) (instances where the Department may not issue 
a passport, except for direct return to the United States);
    (2) Section 51.60(f) (failure to provide a social security number, 
or purposefully providing an incorrect number);
    (3) Section 51.60(g) (denial of passports to certain convicted sex 
offenders);
    (4) Section 51.61(a) (denial of passports to certain convicted drug 
traffickers);
    (5) Section 51.62(b) (revocation of passports for non-U.S. 
nationals or where a certificate of citizenship or naturalization has 
been cancelled);
    (6) Section 51.62(c)(3) (cancellation of a Consular Report of Birth 
Abroad upon the Department's determination that the bearer is not a 
U.S. national or where a certificate of citizenship has been 
cancelled);
    (7) Section 51.62(d) (revocation of passports issued to certain 
convicted sex offenders);
    (8) Section 51.64 (specially validated passports);
    (9) Any other provision not listed at Sec.  51.70(a).
    (c) If a timely request for a hearing is made by a person seeking a 
hearing in accordance with these regulations, the Department will make 
reasonable efforts to hold the hearing within 90 days of the date the 
Department receives the request.
    (d) Within a reasonable period of time prior to the hearing, the 
Department will give the person requesting the hearing written notice 
of the date, time and place of the hearing and copies of the evidence 
relied on in denying, revoking, or cancelling the passport or Consular 
Report of Birth Abroad.
    (e) The person requesting the hearing may obtain one continuance, 
not to exceed an additional 90 days, upon written request. The request 
for a continuance must be received by the Department as soon as 
practicable and in no case less than five business days prior to the 
scheduled hearing date. Any further continuances are within the sole 
discretion of the Department.
0
12. Revise Sec.  51.71 to read as follows:


 Sec.  51.71   The hearing.

    (a) The Department will name a hearing officer, who will generally 
be a Department employee from the Bureau of Consular Affairs. The 
hearing officer will make only preliminary findings of fact and submit 
recommendations based on the record of the hearing, as defined in 22 
CFR 51.72, to the Deputy Assistant Secretary for Passport Services, or 
his or her designee, in the Bureau of Consular Affairs.
    (b) The hearing shall take place in Washington, DC or, if the 
person requesting the hearing is overseas, at the appropriate U.S. 
diplomatic or consular post. The person requesting the hearing must 
appear in person or with or through his or her attorney. Failure to 
appear at the scheduled hearing will constitute an abandonment of the 
request for a hearing, and the Department's revocation, cancellation or 
denial will be considered the Department's final action.
    (c) Any attorney appearing at a hearing 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, or be admitted to 
practice before the courts of the country in which the hearing is to be 
held.
    (d) There is no right to subpoena witnesses or to conduct 
discovery. However, the person requesting the hearing may testify in 
person, offer evidence in his or her own behalf, present witnesses, and 
make arguments at the hearing. The person requesting the hearing is 
responsible for all costs associated with the presentation of his or 
her case, including the cost of interpreters, who must be certified in 
accordance with standards established for federal courts under 18 
U.S.C. 1827. The Department may present witnesses, offer evidence, and 
make arguments in its behalf. The Department is responsible for all 
costs associated with the presentation of its case.
    (e) The hearing is informal and permissive. As such, the provisions 
of 5 U.S.C. 554 et seq. do not apply to the hearing. Formal rules of 
evidence also do not apply; however, the hearing officer may impose 
reasonable restrictions on relevancy, materiality, and competency of 
evidence presented. Testimony will be under oath or by affirmation 
under penalty of perjury. The hearing officer may not consider any 
information that is not also made available to the person requesting 
the hearing, the Department, and made a part of the record of the 
proceeding.
    (f) If any witness is unable to appear, the hearing officer may, in 
his or her discretion, accept an affidavit or sworn deposition 
testimony of the witness, the cost for which will be the responsibility 
of the requesting party, subject to such limits as the hearing officer 
deems appropriate.
    (g) The person requesting the hearing and the Department of State 
may submit written briefs or argument prior to the hearing, but it is 
not required. The hearing officer will specify the date and schedule 
for the parties to submit written briefs, should they choose to do so.
    (h) The purpose of the hearing is to provide the person requesting 
the hearing an opportunity to challenge the basis for the Department's 
decision to deny or revoke the passport, or cancel the Consular Report 
of Birth Abroad. The burden of production is on the Department, and the 
Department shall provide the evidence it relied upon in revoking or 
denying the passport, or cancelling the Consular Report of Birth 
Abroad, prior to the hearing. The

[[Page 58783]]

burden of persuasion is on the person requesting the hearing, to prove 
by a preponderance of the evidence that the Department improperly 
revoked the passport or denied the passport application, or cancelled 
the Consular Report of Birth Abroad, based on the facts and law in 
effect at the time such action was taken.
0
13. Revise Sec.  51.72 to read as follows:


Sec.  51.72  Transcript and record of the hearing.

    A qualified reporter, provided by the Department, will make a 
complete verbatim transcript of the hearing. The person requesting the 
hearing or his or her attorney may review and purchase a copy of the 
transcript directly from the reporter. The hearing transcript and all 
the information and documents received by the hearing officer, whether 
or not deemed relevant, will constitute the record of the hearing. The 
hearing officer's preliminary findings and recommendations are 
deliberative, and shall not be considered part of the record unless 
adopted by the Deputy Assistant Secretary for Passport Services, or his 
or her designee.
0
14. Revise Sec.  51.73 to read as follows:


Sec.  51.73  Privacy of hearing.

    Only the person requesting the hearing, his or her attorney, an 
interpreter, the hearing officer, the reporter transcribing the 
hearing, and employees of the Department concerned with the 
presentation of the case may be present at the hearing. Witnesses may 
be present only while actually giving testimony or as otherwise 
directed by the hearing officer.
0
15. Revise Sec.  51.74 to read as follows:


Sec.  51.74  Final decision.

    After reviewing the record of the hearing and the preliminary 
findings of fact and recommendations of the hearing officer, and 
considering legal and policy considerations he or she deems relevant, 
the Deputy Assistant Secretary for Passport Services, or his or her 
designee, will decide whether to uphold the denial or revocation of the 
passport or cancellation of the Consular Report of Birth Abroad. The 
Department will promptly notify the person requesting the hearing of 
the decision in writing. If the decision is to uphold the denial, 
revocation, or cancellation, the notice will contain the reason(s) for 
the decision. The decision is final and is not subject to further 
administrative review.

Carl C. Risch,
Assistant Secretary of State for Consular Affairs, Department of State.
[FR Doc. 2017-26751 Filed 12-13-17; 8:45 am]
 BILLING CODE 4710-13-P