[Federal Register Volume 89, Number 93 (Monday, May 13, 2024)]
[Rules and Regulations]
[Pages 41308-41311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-10245]


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DEPARTMENT OF STATE

22 CFR Parts 50, 51, and 71

[Public Notice: 12387]
RIN 1400-AF54


Third-Party Attendance at Appointments for Passport, Consular 
Report of Birth Abroad (CRBA), and Certain Other Services

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: This rule adopts as final the notice of proposed rulemaking 
(NPRM) published in the Federal Register on July 26, 2023. This final 
rule provides that private attorneys, interpreters, and other third 
parties may attend certain appointments at passport agencies and 
centers and at U.S. embassies and consulates overseas to assist the 
person requesting services (the applicant/requester). This rule 
permitting third-party attendance will apply only to appointments in 
support of an application for a U.S. passport, either domestically or 
overseas; to appointments related to a request for a Consular Report of 
Birth Abroad or a Certificate of Loss of Nationality of the United 
States (CLN); and to other appointments for certain other services 
offered by American Citizens Services (ACS) units at U.S. embassies and 
consulates overseas (posts). In addition, this final rule includes 
technical corrections to clarify who may act as a consular officer for 
purposes of the Protection and Welfare of Citizens and their Property.

DATES: The final rule is effective June 12, 2024.

FOR FURTHER INFORMATION CONTACT: Jennifer Tinianow, Office of 
Adjudication, Passport Services, (202) 485-8800, or email 
[email protected].

SUPPLEMENTARY INFORMATION: The Department of State (Department) 
published a proposed rule (Public Notice 11999) on July 26, 2023, at 88 
FR 48143, with 60 days provided for public comment. This final rule 
amends title 22 of the Code of Federal Regulations (CFR) by updating 
parts 50, 51, and 71 to publish regulations regarding when attorneys, 
interpreters, or other third parties may attend an appointment either 
domestically or overseas for a U.S. passport, Consular Report of Birth 
Abroad (CRBA), Certificate of Loss of Nationality (CLN) services, or 
for certain other U.S citizen services offered by ACS units at post.
    Additionally, the final rule includes technical amendments to 22 
CFR part 71 to clarify that appropriately designated Department 
employees, in addition to officers of the Foreign Service, may assist 
U.S. citizens seeking assistance at overseas posts. This change is 
consistent with federal law and regulations which were amended after 22 
CFR part 71 was established in 1957.

Analysis of Comments

    The comment period for the proposed rule closed September 25, 2023, 
after a 60-day comment period. Three comments were received. One 
comment expressed unqualified support for the rule, noting that third-
party assistance at the applicant's expense is crucial to disabled 
persons, the elderly, children, and many other people requesting U.S. 
citizens services. The other two comments also specifically expressed 
appreciation for the role that professional assistance of counsel may 
provide. The comments raised the following topics:

Topic 1: Qualifications of Attorney, Other Third-Party Attendee

    Two commenters expressed concern that the draft rule does not 
specify any qualifications that an attorney and/or other third party 
must have as a prerequisite to attending covered appointments. In 
particular, the commenters expressed concern about unauthorized 
practice of law.
    The Department has previously considered whether to develop 
specific requirements that an individual must meet (and presumably 
establish to the satisfaction of the U.S. diplomatic or consular 
officer) to qualify as an ``other third party'' with a view, in part, 
to protect against unauthorized practice of law by, e.g., non-attorney 
immigration consultants. We have also considered whether to limit the 
definition of ``attorney'' to persons admitted to the bar of and 
licensed to practice in a U.S. state who are in good standing. However, 
in promulgating this rule, the Department is not seeking to regulate 
the person who a U.S. citizen chooses to accompany them to their 
appointment. While there is no Department-imposed requirement that an 
applicant/requester be represented

[[Page 41309]]

by an attorney or other third party (regardless of qualifications) to 
apply for a U.S. passport, Consular Report of Birth Abroad, or any 
other covered service, the Department recognizes that some U.S. 
citizens may wish for a private attorney, interpreter and/or other 
third party of their choice to physically accompany them to the 
appointment. Particularly when an individual is seeking to document 
their citizenship and/or request other services offered by the American 
Citizens Services Unit at a U.S. embassy or consulate, the Department's 
goal is to facilitate as much as possible a U.S. citizen's choice of 
whom, if anyone, they wish to accompany them. This discretion to choose 
may be critical for persons of limited resources who may not be able to 
afford an attorney, and/or for the most vulnerable, including the 
elderly or disabled. Additionally, time and resource constraints as 
well as logistical difficulties in establishing a set of required 
qualifications to apply equally in all cases, which would require post 
and/or headquarters to verify information to ensure compliance, would 
unnecessarily complicate and limit the applicant/requester's ability to 
identify someone who may be eligible to accompany them. The Department 
will confirm that the applicant/requester has asked the third party to 
be present and will verify that the third party is cleared by 
Diplomatic Security using the applicable security procedures. The 
Department will include appropriate language on its public-facing 
website about the policy that will also inform the public that: (1) the 
Department does not require anyone to have an attorney or other third 
party to obtain and/or attend an appointment for a covered service; (2) 
the Department neither requires a third party to have, nor does the 
Department check to ensure that a third party has, any specific 
qualifications (beyond meeting security requirements); and, (3) that 
permitting a third party to attend an appointment in no way constitutes 
an endorsement of the third party and/or a representation that the 
third party has certain, or any, qualifications and/or ability to 
provide any assistance to the applicant/requester.

Topic 2: Scope of Covered Appointments

    One comment urged the Department to consider expanding the proposed 
rule to allow attorneys to accompany their clients to immigrant visa 
and nonimmigrant visa interviews at U.S. embassies and consulates 
abroad. For decades the Department has deferred to consular sections in 
deciding whether attorneys or other third parties may be present at a 
visa interview; applying a uniform approach surrounding visa 
appointments does not account for the differing capacity, logistical, 
and security constraints, among other considerations that only the 
consular section can best assess. There are also different legal 
requirements and considerations pertaining to visa interviews that must 
be examined. For these reasons, we continue to defer to consular 
sections in deciding whether attorneys or other third parties may be 
present at a visa interview.

Topic 3: Proposed Amendments to 22 CFR 50.40(f)

    One commenter requested that the Department ``more clearly reflect 
and clarify'' the view that an applicant's/requester's attorney may be 
present throughout all stages of the process to request a Certificate 
of Loss of Nationality of the United States (CLN), up to and including 
the administration of the oath of renunciation, as articulated by 
Edward A. Betancourt in his 2008 letter to the commenter (attached to 
the comment).
    The Department recognizes the importance of consistent application 
across all posts of a rule permitting an attorney, interpreter, and/or 
other third party to attend interviews related to a request for a CLN 
and to be present (at the request of the U.S. citizen) when a U.S. 
diplomatic or consular officer administers an oath of renunciation to 
the U.S. citizen under Immigration and Nationality Act section 
349(a)(5) (8 U.S.C. 1481). The Department intends to take all 
appropriate steps to ensure compliance with the terms of this rule, and 
will update guidance to its employees in its Foreign Affairs Manual 
(FAM). To the extent that the commenter may be requesting a change to 
the proposed text of the rule to ``more clearly reflect and clarify'' 
the views articulated by Edward A. Betancourt in 2008, the Department 
believes that the text of 22 CFR 50.40(f) is clear and consistent with 
such views and declines to further amend the text.
    Specifically, 22 CFR 50.40(f) provides that individuals may, at 
their own expense, have a private attorney, interpreter, and/or other 
third party of their own choice physically present during any in-person 
appointment, including interview appointments, at a U.S. embassy or 
consulate abroad related to a request for a Certificate of Loss of 
Nationality (CLN) [emphasis added]. The words ``any in-person 
appointment'' clearly encompass any in-person appointment, including 
one at which the oath of renunciation is administered.
    Secondly, even though the text will generally permit an attorney's 
physical presence at any in-person appointment, consistent with the 
views expressed by Edward A. Betancourt in his 2008 letter, the text in 
22 CFR 50.40(f)(4) clearly provides for diplomatic or consular officer 
discretion by stating the diplomatic or consular officer conducting the 
interview shall have the discretion to interview the individual alone, 
without an attorney and/or other third party present, when necessary to 
evaluate whether the individual has performed a potentially 
expatriating act independently, free from duress or coercion, and with 
intent to relinquish U.S. nationality.
    While this text is somewhat broader than that which Edward A. 
Betancourt used in his 2008 letter (i.e., Mr. Betancourt stated that 
the U.S. diplomatic or consular officer may exercise discretion in 
determining whether to permit an attorney to attend the oath of 
renunciation, whereas this rule covers any stage of the process as 
warranted by the circumstances), diplomatic or consular officer 
discretion supports the consular officer's responsibility to evaluate 
voluntariness and intent and helps ensure the integrity of the process 
at all stages, including at an initial interview.
    Finally, although the text of 22 CFR 50.40(f) specifies that the 
requester must personally respond to the diplomatic or consular 
officer's questions, it does not preclude an attorney from addressing 
the consular officer should a legal question arise during the 
interview.

Regulatory Findings

Administrative Procedure Act
    The Department published this rulemaking as a proposed rule and 
provided 60 days for public comment. The effective date of this final 
rule will be 30 days from date of publication.
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 rulemaking will not have a 
significant economic impact on a substantial number of small entities. 
Only individuals, and no small entities, apply for passports or CRBAs 
or other services offered by the American Citizens Services (ACS) units 
at U.S. embassies and consulates overseas.

[[Page 41310]]

Congressional Review Act
    This rule has not been designated as ``major'' within the meaning 
of the Congressional Review Act, 5 U.S.C. 801 et seq.
Unfunded Mandates Act of 1995
    This final rule does not result in the expenditure by state, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$100 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.
Executive Orders 12866, 14094, and 13563
    The Department has reviewed this final rule to ensure its 
consistency with the regulatory philosophy and principles set forth in 
Executive Order 12866. Applicants appearing for passport and/or CRBA 
appointments, or seeking certain other services from an ACS unit 
overseas, occasionally request that a private attorney, interpreter, or 
other third party physically accompany them to the appointment; 
however, there is nothing in the Department's regulations that 
currently addresses this. The Department finds that the cost of this 
rulemaking to the public is expected to be minimal and provides a 
potential benefit to individuals who wish an attorney, interpreter, or 
other third party to accompany them to a passport, CRBA, or other 
appointment at an ACS unit overseas. At the same time, those who wish 
to appear without being accompanied by such individuals may do so; this 
rulemaking does not mandate any change in the public's behavior. 
Additionally, the Department does not anticipate that demand for 
passport, CRBA, or other services at ACS units overseas will change as 
a result of this rulemaking. In summary, the Department anticipates no 
substantive impact on the public from this final rule. The Department 
of State has considered this final rule in light of Executive Order 
13563, dated January 18, 2011, and affirms that this regulation is 
consistent with the guidance therein.
Executive Orders 12372 and 13132--Federalism
    This rule 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 rulemaking does not 
have sufficient federalism implications to require consultations or 
warrant the preparation of a federalism summary impact statement. The 
regulations implementing E.O. 12372 regarding intergovernmental 
consultation on Federal programs and activities do not apply to this 
regulation.
Executive Order 13175--Consultation With Tribal Governments
    The Department has determined that this rulemaking does not have 
tribal implications, does not impose substantial direct compliance 
costs on Indian tribal governments, and does not pre-empt tribal law. 
Accordingly, the requirements of E.O. 13175 do not apply to this rule.
Paperwork Reduction Act
    This rulemaking does not impose any new reporting or recordkeeping 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 
35.

List of Subjects

22 CFR Part 50

    Citizenship and Naturalization.

22 CFR Part 51

    Passports.

22 CFR Part 71

    Protection of U.S. citizens abroad.

    Accordingly, for the reasons set forth in the preamble, 22 CFR 
parts 50, 51, and 71 are amended as follows:

PART 50--NATIONALITY PROCEDURES

0
1. The authority 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.  50.40 by adding paragraph (f) to read as follows:


Sec.  50.40  Certification of loss of U.S. nationality.

* * * * *
    (f) Attorney or Other Third-Party Presence at In-Person CLN 
appointments. Individuals may, at their own expense, have a private 
attorney, interpreter, or other third party of their own choice 
physically present during any in-person appointment, including 
interview appointments, at a U.S. embassy or consulate abroad related 
to a request for a Certificate of Loss of Nationality (CLN); provided 
that:
    (1) The individual and/or the attorney or other third party shall 
provide advance notice of the attorney's or other third party's intent 
to attend the CLN appointment in the manner specified by the Department 
of State and/or the specific U.S. embassy or consulate where the 
appointment is to take place;
    (2) The individual requesting the CLN must appear in person for the 
mandatory in-person interview appointment(s); attendance by an attorney 
or other third party shall not be in lieu of the individual's in-person 
appearance;
    (3) The diplomatic or consular officer will direct all interview 
questions to the individual requesting the CLN, and the individual must 
personally respond to the consular officer;
    (4) The diplomatic or consular officer conducting the interview 
shall have the discretion to interview the individual alone, without an 
attorney or third-party present, when necessary to evaluate whether the 
individual has performed a potentially expatriating act independently, 
free from duress or coercion, and with intent to relinquish U.S. 
nationality;
    (5) Nothing in this section abrogates any policies, security 
directives, and guidelines from the Department, Chief of Mission, or 
Diplomatic Security Service regarding admission to or conduct in the 
U.S. embassy or consulate. All persons entering a U.S. embassy or 
consulate shall comply with all policies, security directives, 
guidelines, and protocols including but not limited to those regarding 
security, identification, screening, electronic devices, recording, 
health, and conduct. Individuals may be refused entry or directed to 
leave the U.S. embassy or consulate for noncompliance with such 
policies, directives, guidelines, and protocols.

0
 3. Add subpart D, consisting of Sec.  50.52, to read as follows:

Subpart D--Third-Party Attendance at Appointments for Passport and 
Consular Report of Birth Abroad (CRBA) Appointments


Sec.  50.52   Attorney or other third-party assistance.

    (a) A person appearing for a passport appointment at a passport 
agency or center domestically or a U.S. embassy or consulate overseas 
or for a Consular Report of Birth Abroad (CRBA) appointment overseas 
may be physically accompanied by a private attorney, interpreter, or 
other third party of their own choice at their own expense to provide 
assistance. All regulations related to passport and CRBA applications 
in this chapter continue to apply.
    (1) An applicant and/or their third-party attendee or attorney may, 
at their own expense, bring their own

[[Page 41311]]

interpreter to any passport and/or CRBA appointment, provided the 
applicant or their attorney or third-party attendee provides advance 
notice of such attendance pursuant to guidance issued by the 
Department.
    (2) Attendance by an attorney or other third party at the 
appointment does not excuse the in-person appearance of the applicant 
as outlined by 22 CFR 51.21 and 51.28.
    (3) Nothing in this section abrogates any policies, security 
directives, and guidelines from the Department, Chief of Mission, or 
Diplomatic Security Service regarding admission to or conduct in a 
domestic passport agency or center or at a U.S. embassy or consulate 
overseas. All persons entering a domestic passport agency or center or 
a U.S. embassy or consulate overseas shall comply with all policies, 
security directives, guidelines, and protocols, including but not 
limited to those regarding security, identification, screening, 
electronic devices, recording, health, and conduct. Individuals may be 
refused entry or directed to leave the U.S. embassy or consulate for 
noncompliance with such policies, directives, guidelines, and 
protocols.

PART 51--PASSPORTS

0
4. The authority citation for part 51 continues to read as follows:

    Authority:  8 U.S.C. 1504; 18 U.S.C. 1621; 22 U.S.C. 211a, 212, 
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, 2714a, 2721, & 3926; 26 U.S.C. 
6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of Pub. L. 
103-317, 108 Stat. 1760]; E.O. 11295, Aug. 6, 1966, FR 10603, 3 CFR, 
1966-1970 Comp., p. 570; Pub. L. 114-119, 130 Stat. 15; Sec. 1 of 
Pub. L. 109-210, 120 Stat. 319; Sec. 2 of Pub. L. 109-167, 119 Stat. 
3578; Sec. 5 of Pub. L. 109-472, 120 Stat. 3554; Pub. L. 108-447, 
Div. B, Title IV, Dec. 8, 2004, 118 Stat. 2809; Pub. L. 108-458, 118 
Stat. 3638, 3823 (Dec. 17, 2004).


0
5. Add Sec.  51.29 to subpart B to read as follows:


Sec.  51.29  Attorney or other third-party assistance.

    A person seeking passport services may be physically accompanied by 
an attorney, interpreter, or other third party of their own choice at 
their own expense in accordance with 22 CFR 50.52.

PART 71--PROTECTION AND WELFARE OF CITIZENS AND THEIR PROPERTY

0
6. The authority citation for part 71 is revised to read as follows:

    Authority:  22 U.S.C. 3904; 22 U.S.C. 2715; 22 U.S.C. 2715a; 22 
U.S.C 2715b; 22 U.S.C. 2715c; 22 U.S.C. 2671(b)(2); 22 U.S.C. 
2671(d); 22 U.S.C. 2670(j); 22 U.S.C. 4196; 22 U.S.C. 4197.

0
7. Revise Sec.  71.1 to read as follows:


Sec.  71.1   Protection of Americans abroad.

    (a) Consular officers shall perform such duties in connection with 
the protection of U.S. nationals abroad as may be required by 
regulations prescribed by the Secretary of State.
    (b) U.S. citizens seeking protection, welfare, or other routine 
American Citizen Services, Special Consular Services, and consular 
crisis preparedness and response from an American Citizens Services 
Unit at a U.S. embassy or consulate may be assisted in related 
proceedings by a third party of their own choice at their own expense 
in accordance with 22 CFR 50.52.
    (c) For purposes of this part, consular officer includes any United 
States citizen employee of the Department of State who is designated by 
the Deputy Assistant Secretary of State for Overseas Citizens Services 
to perform consular services overseas.


Sec.  71.5   [Amended]

0
8. Amend Sec.  71.5 by removing the words ``officer of the Foreign 
Service'' and adding ``diplomatic or consular officer of the United 
States'' in its place.


Sec.  71.6  [Amended]

0
9. Amend Sec.  71.6 by removing the words ``Officers of the Foreign 
Service'' and adding ``Diplomatic or consular officers of the United 
States'' in its place.

Rena Bitter,
Assistant Secretary, Bureau of Consular Affairs, Department of State.
[FR Doc. 2024-10245 Filed 5-10-24; 8:45 am]
 BILLING CODE 4710-25-P