[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]
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