[Federal Register Volume 64, Number 77 (Thursday, April 22, 1999)]
[Rules and Regulations]
[Pages 19713-19715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-10116]
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DEPARTMENT OF STATE
22 CFR Parts 50 and 51
[Public Notice 3027]
Nationality Procedures--Report of Birth Regulation; Passport
Procedures--Revocation or Restriction of Passports Regulation
AGENCY: Bureau of Consular Affairs, State.
ACTION: Final rule.
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SUMMARY: This rule finalizes the proposed rule published February 5,
1999 (64 FR 5725) and implements sections of the Immigration and
Nationality Technical Corrections Act of 1994 (INTCA). The INTCA added
new grounds for denying, revoking or canceling a passport, and for
canceling a Consular Report of Birth. The rule authorizes the
cancellation of a Consular Report of Birth, or a certification thereof,
if it appears that such document was illegally, fraudulently, or
erroneously obtained, or was created through illegality or fraud. It
also amends the existing regulation to authorize the cancellation of a
United States passport when a person has obtained a United States
passport illegally or erroneously, or when the Department of State has
been notified that a naturalized person whose order of admission to
citizenship and certificate of naturalization, on the basis of which
the passport was issued, have been canceled or set aside as the result
of a judicial denaturalization procedure.
Finally, the rule amends regulations by replacing the procedures
for appeal of adverse passport action. Other agency regulations contain
provisions for the organization and operation of the Board of Appellate
Appeal of the Department of State. Under this rule, the Board of
Appellate Review no longer has jurisdiction to consider appeals from
adverse passport actions. The decision of the Deputy Assistant
Secretary of State for Passport Services is final.
EFFECTIVE DATE: April 22, 1999.
FOR FURTHER INFORMATION CONTACT: Sharon E. Palmer-Royston, Chief, Legal
Division, Office of Passport Policy, Planning and Advisory Services,
U.S. Department of State, 1111 19th Street, N.W., Suite 260,
Washington, D.C. 20524 (202) 955-0231.
SUPPLEMENTARY INFORMATION: The Department published a proposed rule,
Public Notice 2961 at 64 FR 5725, February 5, 1999, with a request for
comments, for numerous sections of Title 22, Parts 50 and 51 of the
Code of Federal Regulations. The rule was primarily proposed to
implement provisions of the Immigration and Nationality Technical
Corrections Act of 1994, Pub. L. 103-416 (INTCA), though it also makes
a procedural change for appeal of adverse passport action. The rule was
discussed in detail in Public Notice 2961, as were the Department's
reasons for the changes to the regulations. The rules incorporate
changes to those sections in Parts 50 and 51 explained below.
A passport when issued for its full validity period and a ``Report
of Birth Abroad of a Citizen of the United States'', issued by a
consular officer to document a citizen born abroad, are documents
established as proof of United States citizenship by the provisions of
section 33 of the Department of State Basic Authorities Act of 1956, as
amended (22 U.S.C. 2705). 8 U.S.C. 1504 (108 Stat. 4309, October 25,
1994) authorizes the Secretary of State to cancel either of these
documents if it appears that they were obtained illegally, fraudulently
or erroneously. The rule amends the regulations by providing for a
post-cancellation hearing when a Consular Report of Birth, or
certification thereof, is canceled. The provisions of 22 CFR 51.75
already provide for notification in writing of the reasons for the
revocation and of the procedures for review to any person who is the
subject of a passport cancellation and revocation on the grounds, among
others, that the passport was obtained illegally, fraudulently or
erroneously. Procedures for review include a hearing available under
subsections 51.80 through 51.89 of the passport regulations in 22 CFR
part 51. Such a hearing concerns only the extent to which the passport
was illegally, fraudulently or erroneously obtained and not the
citizenship status of the person in whose name the document was issued.
A district court of the United States may denaturalize an
individual in a judicial proceeding on the grounds that such order and
certificate of naturalization were illegally procured or were procured
by concealment of a material fact or by willful misrepresentation. Any
person who is the subject of a passport revocation due to judicial
denaturalization, i.e., by reason of noncitizenship, is not entitled to
a hearing by the Department of State, pursuant to the provisions in 22
CFR 51.80(a).
The Board of Appellate Review of the Department of State has had
jurisdiction to consider appeals from decisions of
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the Office of Passport Services that constitute adverse action
affecting a passport: denial, revocation, or limitation. This
jurisdiction has been infrequently utilized, and an adverse action can
be reviewed fairly and efficiently without the same kind of
administrative hearing that the Board conducts in loss of nationality
cases. Changes in the applicable laws, their interpretation, and
practice thereunder now make it even more unlikely that administrative
appeals will be taken. Accordingly, 22 CFR part 7 is being amended by
eliminating this particular administrative appeal jurisdiction. This
amendment to 22 CFR part 51, Subpart F, reflects that change and
replaces an appeal with a request for reconsideration.
In current practice, the most common adverse passport action is
denial or revocation based upon grounds set forth in 22 CFR section
51.70(a), such as being subject to a Federal warrant of arrest or being
under court ordered restraint. In these cases, the Board of Appellate
Review or other appellate body within the Department of State has no
authority to affect the underlying ground for adverse passport action,
so that this rule results in no change in existing practice. Similarly,
passport denial or revocation as set forth in 22 CFR subsection
51.70(b)(4), the Secretary of State's determination that activities of
the affected national abroad are causing or are likely to cause serious
damage to the national security or the foreign policy of the United
States, has not been delegated by the Secretary and is not subject to
subordinate review.
Accordingly, the findings of fact and recommendations resulting
from a hearing before a hearing officer are referred to the Deputy
Assistant Secretary for Passport Services for decision instead of to
the Assistant Secretary for Consular Affairs. The rule permits the
adversely affected person to request reconsideration by the Deputy
Assistant Secretary, but the initial decision or the decision based
upon request for reconsideration, as the case may be, is final.
The rule also amends 22 CFR section 51.84 by substituting a more
general statement of legal qualifications for representatives for the
current reference to the qualification set by the Board of Appellate
Review.
Finally, the rule makes clear that nothing in revised 22 CFR
section 51.89 bars an adversely affected person from submitting a new
passport application as provided for in 22 CFR part 51, Subparts B
through D.
Analysis of Comments
The proposed rule was published February 5, 1999 at 64 FR 5725. The
commenting period was closed March 8, 1999. The Department received one
inquiry that concerned the change in regulations to replace the
procedures for appeal of adverse passport action. The inquirer was
concerned that eliminating jurisdiction for the Board of Appellate
Review to consider appeals from adverse passport actions would deny
procedural due process where the adverse action was taken on grounds of
noncitizenship. However, a person who has been denied a passport on
grounds that they are not a national of the United States may seek a
declaration of their nationality in U.S. district court pursuant to the
provisions of 8 U.S.C. 1503(a).
Final rule
This rule is not expected to have a significant economic impact on
a substantial number of small entities under the criteria of the
Regulatory Flexibility Act, 5 U.S.C. 605(b). This rule imposes no
reporting or recordkeeping action from the public requiring the
approval of the Office of Management and Budget under the Paperwork
Reduction Act requirements. This rule has been reviewed as required by
E.O. 12988 and determined to be in compliance therewith. This rule is
exempted from E.O. 12866 but has been reviewed and found to be
consistent therewith. The proposed rule was submitted for review in
accordance with 5 U.S.C. 801 et seq., as amended.
List of Subjects
22 CFR Part 50
Citizenship and Naturalization.
22 CFR Part 51
Administrative practice and procedure, Drug traffic control,
Passports and visas, Reporting and recordkeeping requirements.
Accordingly, 22 CFR Parts 50 and 51 are amended as follows:
PART 50--NATIONALITY PROCEDURES
1. The authority citation for Part 50 is revised to read as
follows:
Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104, 1502, 1503 and 1504.
2. Section 50.7 is amended by adding a new paragraph (d) 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, or a certification thereof, may be
canceled if it appears that such document was illegally, fraudulently,
or erroneously obtained, or was created through illegality or fraud.
The cancellation under this paragraph of such a document purporting to
show the citizenship status of the person to whom it was issued shall
affect only the document and not the citizenship status of the person
in whose name the document was issued. A person for or to whom such
document has been issued or made shall be given at such person's last
known address, written notice of the cancellation of such document,
together with the specific reasons for the cancellation and the
procedures for review available under the provisions in 22 CFR 51.81
through 51.89.
PART 51--PASSPORTS
1. The authority citation for Part 51 is revised to read as
follows:
Authority: 22 U.S.C. 211a; 22 U.S.C. 2651a, 2671(d)(3), 2714 and
3926; 31 U.S.C. 9701; E.O. 11295, 3 CFR, 1966-1970 Comp., p 570;
sec. 129, Pub. L. 102-138, 105 Stat. 661; 8 U.S.C. 1504.
2. Section 51.72 is amended by revising paragraph (b) and adding
paragraph (c) as follows:
Sec. 51.72 Revocation or restriction of passports.
* * * * *
(b) The passport has been obtained illegally, by fraud, or has been
fraudulently altered, or has been fraudulently misused, or has been
issued in error; or
(c) The Department of State is notified that a certificate of
naturalization issued to the applicant for or bearer of the passport
has been canceled by a federal court.
3. Section 51.80 is revised to read as follows:
Sec. 51.80 Applicability of Secs. 51.81 through 51.89.
(a) The provisions of Secs. 51.81 through 51.89 apply to any action
of the Secretary taken on an individual basis in denying, restricting,
revoking or invalidating a passport or a Consular Report of Birth, or
in any other way adversely affecting the ability of a person to receive
or use a passport except action taken by reason of:
(1) Noncitizenship,
(2) Refusal under the provisions of Sec. 51.70(a)(8),
(3) Refusal to grant a discretionary exception under the emergency
or humanitarian relief provisions of Sec. 51.71(c), or
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(4) Refusal to grant a discretionary exception from geographical
limitations of general applicability.
(b) The provisions of this subpart shall otherwise constitute the
administrative remedies provided by the Department to persons who are
the subject of adverse action under Secs. 51.70, 51.71 or 51.72.
Sec. 51.83 [Amended]
5. Section 51.83 is amended by revising the phrase ``Administrator
of'' to read ``Deputy Assistant Secretary for Passport Services in''
and by removing ``Security and''.
Sec. 51.84 [Amended]
6. Section 51.84 is amended by revising the phrase ``must possess
the qualifications prescribed for practice before the Board of
Appellate Review'' to read ``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''.
7. Section 51.89 is revised to read as follows:
Sec. 51.89 Decision of Deputy Assistant Secretary for Passport
Services.
The person adversely affected shall be promptly notified in writing
of the decision of the Deputy Assistant Secretary for Passport
Services, and, if the decision is adverse to that person, the
notification shall state the reasons for the decision. The notification
shall also state that the adversely affected person may request
reconsideration within 60 days from the date of the notice of the
adverse action. If no request is made within that period, the decision
is considered final and not subject to further administrative review; a
decision on a request for reconsideration is also administratively
final. Nothing in this section, however, shall be considered to bar the
adversely affect person from submitting a new passport application as
provided for in subparts B through D of this part.
Dated: April 9, 1999.
Donna J. Hamilton,
Acting Assistant Secretary for Consular Affairs.
[FR Doc. 99-10116 Filed 4-21-99; 8:45 am]
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