2023-15744. Third-Party Attendance at Appointments for Passport, Consular Report of Birth Abroad (CRBA), and Certain Other Services

AGENCY:

Department of State.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Department proposes a rule to provide that private attorneys, interpreters, and other third parties may attend certain appointments at passport agencies and centers and at U.S. embassies and consulates abroad to assist the person requesting services (the applicant/requester). This rulemaking 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, the Department is proposing 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 Department of State will accept comments until September 25, 2023.

ADDRESSES:

Interested parties may submit comments to the Department by any of the following methods:

• Visit the Regulations.gov website at:https://www.regulations.gov and search for the docket number DOS–2023–0008.

• Email:[e-mail]. You must include AF54 in the subject line of your message.

• All comments should include the commenter's name, the organization the commenter represents, if applicable, and the commenter's address. If the Department is unable to read your comment for any reason, and cannot contact you for clarification, the Department may not be able to consider your comment. After the conclusion of the comment period, the Department will publish a Final Rule (in which it will address relevant comments) as expeditiously as possible.

FOR FURTHER INFORMATION CONTACT:

Jennifer Tinianow, Office of Adjudication, Passport Services, (202) 485–8800, or email [e-mail].

SUPPLEMENTARY INFORMATION:

Applicants appearing for passport and/or Consular Reports of Birth Abroad (CRBA) appointments or seeking certain other services as described below at an American Citizens Services (ACS) unit overseas, occasionally request that a private attorney, interpreter, and/or other third party physically accompany them to the appointment. In order to clarify worldwide guidelines for third-party attendance at appointments for a passport (either at a U.S. domestic agency or center or overseas), CRBA, or certain other services offered by the ACS Unit at an overseas post, the Department proposes to amend 22 CFR parts 50, 51, and 71 to address when attorneys and/or other third parties may attend an appointment for a U.S. passport, CRBA, Certificate of Loss of Nationality of the United States (CLN), or for certain other U.S. citizen services offered at post by the ACS unit overseas. Although Department guidance has permitted third-party attendance at such appointments in the past, the Department has not promulgated a regulation regarding third-party attendance. Based on our determination that domestic passport agencies and centers and ACS units at U.S. embassies and consulates overseas generally have the capacity to accommodate third-party attendance at such appointments under existing policy, the Department proposes to publish regulations not only to provide greater transparency to the public but also an explicit framework through which the Department, including the Diplomatic Security Service and Chiefs of Mission, may facilitate such third-party attendance. The proposed rule specifically addresses attendance of a private attorney, interpreter, and/or other third party to assist a U.S. citizen or a person with a claim to U.S. citizenship appearing for a passport appointment at a passport agency or center domestically or U.S. embassy or consulate overseas, or for a CRBA or CLN appointment at a U.S. embassy or consulate overseas. The proposed rule also applies to the three types of U.S. citizen services offered at an ACS unit at post, as described in 7 FAM 020 Appendix B (routine American Citizens Services, Special Consular Services, and consular crisis preparedness and response).

While the Department believes that the assistance of a third party is not needed to obtain a U.S. passport, CBRA, or to receive other U.S. citizen services, it recognizes that U.S. citizens or persons may wish to be accompanied by a private attorney, interpreter, and/or other third party to their appointment(s) to provide assistance. This proposed rule pertains to third parties who may physically accompany an individual to a covered appointment. It further confirms that all regulations related to passport and CRBA applications in this chapter continue to apply including, but not limited to, regulations placing the burden of proving eligibility for the requested service or document on the applicant. Individuals will bear any cost associated with the attendance of an attorney, interpreter, and/or other third party. Attendees must follow all security policies of the facility in which the appointment takes place and may not be permitted to attend an appointment if they engage in any conduct that in the view of the Diplomatic Security Service or Chief of Mission (or designee), in their sole discretion, disrupts the appointment. Entry to U.S. embassies and consulates is pursuant to Department, Chief of Mission, and/or Diplomatic Security policies, security directives, and communicated guidelines.

Lastly, the Department is proposing 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 published in 1957.

Regulatory Findings

Administrative Procedure Act

The Department of State is publishing this rulemaking as a proposed rule and is providing 60 days for public comment.

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.

Unfunded Mandates Act of 1995

This rulemaking will 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 Order 12866

The Department has reviewed this proposed regulation to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866, as amended by Executive Order 14094. 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, and/or other third party physically accompany them to the appointment; however, Department regulations currently do not address third party attendance in these contexts. 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, and/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 proposed 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 rulemaking.

Executive Order 13563—Improving Regulation and Regulatory Review

The Department of State has considered this proposed 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 regulation 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 proposed 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 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 E.O. 13175 do not apply to this proposed 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 US citizens abroad

Accordingly, for the reasons set forth in the preamble, the Department of State proposes to amend 22 CFR parts 50, 51, and 71 as follows:

PART 50—NATIONALITY PROCEDURES

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.

2. Amend § 50.40 by adding paragraph (f) to read as follows:

§ 50.40

Certification of loss of U.S. nationality.

* * * * *

(f) Attorney and/or Other Third-Party Presence at In-Person Certificate of Loss of Nationality (CLN) appointments. 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 CLN; provided that:

(1) The individual or the attorney and/or other third party shall provide advance notice of the attorney's and/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 and/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 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.

(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.

3. Add subpart D to part 50 to read as follows:

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

50.52.

Attorney or Other Third-Party Assistance.

§ 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, and/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 including, but not limited to, regulations placing the burden of proving eligibility for the requested service or document on the applicant/requester.

(1) An applicant and/or their attorney, and/or other third-party attendee may, at their own expense, bring their own interpreter to any passport and/or CRBA appointment, provided the applicant and/or their attorney and/or third-party attendee provides advance notice of such attendance pursuant to guidance issued by the Department.

(2) Attendance by an attorney and/or other third party at the appointment does not excuse the in-person appearance of the applicant as outlined by §§ 51.21 and 51.28 of this chapter.

(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

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).

2. Add § 51.29 to read as follows:

§ 51.29

Attorney or other third-party assistance.

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

PART 71—PROTECTION AND WELFARE OF CITIZENS AND THEIR PROPERTY

1. The Authority citation for Part 71 is amended 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

2. In subpart A of part 71, remove the words “officer[s] of the Foreign Service” and replace them with the words “diplomatic or consular officer[s] of the United States”, wherever they appear.

3. Revise § 71.1 to read as follows:

§ 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 § 50.52 of this chapter.

(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.

Rena Bitter,

Assistant Secretary, Bureau of Consular Affairs, Department of State.