[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

PassportOfficeofAdjudicationGeneral@state.gov.

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

  1. 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

  1. 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

  1. 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

  1. 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

  1. 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

  1. 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

  1. 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

  1. 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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