[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21872-21876]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09995]


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DEPARTMENT OF STATE

22 CFR Parts 50 and 51

[Public Notice 10383]
RIN 1400-AD54


Passports

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This final rule provides various changes and updates to the 
Department of State passport rules. The final 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 final rule provides additional information 
relating to the conduct of review hearings.

DATES: This rule is effective on May 11, 2018.

FOR FURTHER INFORMATION CONTACT: Anita Mody, Office of Legal Affairs, 
Passport Services, (202) 485-6500, [email protected]. Hearing- or 
speech-impaired persons 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 published a proposed rule, 
Public Notice 9804 at 82 FR 58778, December 14, 2017, with a request 
for comments, amending various sections of Parts 50 and 51 of Title 22 
of the Code of Federal Regulations. The rule was proposed primarily to 
revise Department of State regulations relating to the denial and 
revocation of passports, and provide additional information relating to 
the conduct of review hearings. The rule and the Department's reasons 
for the changes were discussed in detail in Public Notice 9804. The 
Department is now promulgating a final rule.
    The final rule contains one minor change, one technical fix, and no 
substantive changes. The change, in

[[Page 21873]]

response to a comment received, clarifies in 22 CFR 51.70(b)(3) that 
the section referenced only applies to passport cards.
    Analysis of Comments: The comment period for the proposed rule 
closed February 12, 2018, after a 60-day comment period. One comment 
was received. The comment raised two issues:
    (1) As 22 CFR 51.60(g) specifies that the Department shall not 
issue passport cards to certain convicted sex offenders, the 
parenthetical descriptor in proposed 22 CFR 51.70(b)(3): ``Section 
51.60(g) (denial of passports to certain convicted sex offenders)'' 
should specify that it only applies to passport cards.
    Response: The Department's final rule specifies ``cards'' in the 
parenthetical descriptor, such that 22 CFR 51.70(b)(3) now reads: 
Section 51.60(g) (denial of passport cards to certain convicted sex 
offenders).
    (2) The governing statute, 22 U.S.C. 212b, allows but does not 
require the Department to revoke the existing passports held by covered 
sex offenders that do not bear the ``unique identifier'' required by 
that statute. See 22 U.S.C. 212b(b)(1) (``[T]he Secretary of State . . 
. may revoke a passport previously issued without [] an identifier of a 
covered sex offender.'' [emphasis added]). The proposed rules therefore 
err in processing revocations on this basis in the same manner as 
revocations on other bases, such as a conviction for ``sexual tourism'' 
under 18 U.S.C. 2423 and 22 U.S.C. 212a(b)(1). The proposed rules also 
err in rendering the passports currently held by ``covered sex 
offenders'' to be invalid immediately upon approval of the notice of 
revocation. That is because revocations for a sexual tourism conviction 
(and for other reasons) are mandatory, while the revocation of 
passports issued to ``covered sex offenders'' is not mandatory under 22 
U.S.C. 212b or any other provision of law. In addition, individuals 
convicted of sexual tourism are categorically ineligible to hold 
passports during the period following their conviction. In contrast, 
``covered sex offenders'' under 22 U.S.C. 212b are allowed to carry 
their existing passports that do not bear the identifier for an 
indeterminate period of time, until that passport is revoke by the 
Department. Because ``covered sex offenders'' who currently possess 
passports are not in violation of the law, they should not be treated 
the same as individuals whose current possession of a passport is 
illegal. The governing statute, 22 U.S.C. 212b(b)(1), gives the 
Department the discretion to avoid this inequitable and unduly 
disruptive result by providing a reasonable time for ``covered sex 
offenders'' to apply for and obtain new, compliant passports before 
their existing passports are revoked. ACSOL therefore requests that the 
Department provide this accommodation by revising the Proposed Rules so 
that ``covered sex offenders'' are not prevented from possessing and 
using passports while they await the delivery of passports that comply 
with 22 U.S.C. 212b.''
    Response: The Department declines to process passport revocations 
differently when revoked based on discretionary authority versus where 
revocation is mandatory, and notes the effect of the decision to revoke 
the passport--making the passport invalid--is the same in both cases. 
Adopting the commenter's suggestion that a passport not become invalid 
after it was revoked would negate the purpose of the revocation action. 
Moreover, in response to concern that covered sex offenders be afforded 
an opportunity to apply for and obtain new, compliant passports before 
their existing passports are revoked, such persons are on notice about 
the new revocation grounds and may always apply for a new passport with 
the required endorsement prior to expiration of or revocation of their 
current one. To the extent the comment addresses the Department's 
determination to revoke passports under 22 U.S.C. 212b, such issues are 
outside the scope of the immediate rule as they are already specified 
in the current regulations at 22 CFR 51.60(a)(4) and 22 CFR 
51.62(a)(1).
    Finally, the Department noticed a typographical error in a citation 
included in the proposed rule. The citation relating to qualified 
interpreters (see Sec.  51.71(d)) should be ``28 U.S.C. 1827.'' It is 
corrected in this final rule.

Regulatory Analysis and Notices

Executive Orders 12866 and 13771

    The Department finds that this final rulemaking implements 
Congressional intent as reflected in the Immigration and Naturalization 
Act, and that the benefits of the rulemaking outweigh any costs to the 
public. The Office of Information and Regulatory Affairs has designated 
this final rule as non-significant within the meaning of Executive 
Order 12866. Consequently, no actions are required pursuant to 
Executive Order 13771.

Consultations With Tribal Governments

    The Department has determined that this rulemaking 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 Executive Order 13175 do not apply to 
this rulemaking.

Paperwork Reduction Act

    This rule does not impose information collection requirements under 
the provisions of the Paperwork Reductions Act, 44 U.S.C. Chapter 35.

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 rule does not result in any such expenditure nor 
will it significantly or uniquely affect small governments.

Executive Orders 12372 and 13132

    This rulemaking does not have sufficient federalism implications to 
require consultations or warrant the preparation of a federalism 
summary impact statement. The regulations implementing Executive Order 
12372 regarding intergovernmental consultation on Federal programs and 
activities do not apply to this rulemaking.

Executive Order 12988

    The Department of State has reviewed this rulemaking 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.

Small Business Regulatory Enforcement Fairness Act of 1996

    The Department does not believe this rulemaking is a major rule 
under the criteria of 5 U.S.C. 804.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    The Department certifies that this 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.

List of Subjects

22 CFR Part 50

    Citizenship and naturalization.

22 CFR Part 51

    Administrative practice and procedure, Drug traffic control,

[[Page 21874]]

Passports and visas, Reporting and recordkeeping requirements.

    Accordingly, for the reasons set forth in the preamble, 22 CFR 
parts 50 and 51 are amended as follows:

PART 50--NATIONALITY PROCEDURES

0
1. The authority citation for 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 citation for 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 of this chapter and 8 
U.S.C. 1481.

0
6. Revise the heading of subpart E to read as follows:

Subpart E--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. Revise Sec.  51.62 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 paragraphs (d)(1) and (2) of this section, the 
Department may issue a limited validity passport for direct return to 
the United States.

0
9. Revise Sec.  51.65 to read 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 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.

[[Page 21875]]

    (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 Sec.  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 passport cards 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 28 
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 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

[[Page 21876]]

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.

    Dated: May 3, 2018.
Carl C. Risch,
Assistant Secretary of State for Consular Affairs, Department of State.
[FR Doc. 2018-09995 Filed 5-10-18; 8:45 am]
 BILLING CODE 4710-06-P