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  • News: DOS Publish Final Rule on Passports, CRBAs, Hearings

    [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]
    
    
    =======================================================================
    -----------------------------------------------------------------------
    
    DEPARTMENT OF STATE
    
    22 CFR Parts 50 and 51
    
    [Public Notice 10383]
    RIN 1400-AD54
    
    
    Passports
    
    AGENCY: Department of State.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    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, PassportRules@state.gov. 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
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