Third-Party Attendance at Appointments for Passport, Consular Report of Birth Abroad (CRBA), and Certain Other Services, 41308-41311 [2024-10245]
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41308
Federal Register / Vol. 89, No. 93 / Monday, May 13, 2024 / Rules and Regulations
Order 12866; (2) is not a ‘‘significant
rule’’ under Department of
Transportation (DOT) Regulatory
Policies and Procedures (44 FR 11034;
February 26, 1979); and (3) does not
warrant preparation of a regulatory
evaluation as the anticipated impact is
so minimal. Since this is a routine
matter that will only affect air traffic
procedures and air navigation, it is
certified that this proposed rule, when
promulgated, will not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
Issued in College Park, Georgia, on April
25, 2024.
Andreese C. Davis,
Manager, Airspace & Procedures Team South,
Eastern Service Center, Air Traffic
Organization.
Environmental Review
RIN 1400–AF54
The FAA has determined that this
action qualifies for categorical exclusion
under the National Environmental
Policy Act in accordance with FAA
Order 1050.1F, ‘‘Environmental
Impacts: Policies and Procedures,’’
paragraph 5–6.5a. This airspace action
is not expected to cause any potentially
significant environmental impacts, and
no extraordinary circumstances exist
that warrant the preparation of an
environmental assessment.
Third-Party Attendance at
Appointments for Passport, Consular
Report of Birth Abroad (CRBA), and
Certain Other Services
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
The Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for part 71
continues to read as follows:
■
Authority: 49 U.S.C. 106(f), 106(g); 40103,
40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
1959–1963 Comp., p. 389.
§ 71.1
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of FAA Order JO 7400.11H,
Airspace Designations and Reporting
Points, dated August 11, 2023, and
effective September 15, 2023, is
amended as follows:
■
Paragraph 6005 Class E Airspace Areas
Extending Upward From 700 Feet or More
Above the Surface of the Earth.
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ASO GA E5 Winder, GA [Amended]
Barrow County Airport, GA
(Lat 33°58′58″ N, long 83°40′02″ W)
That airspace extending upward from 700
feet above the surface within a 7.1-mile
radius of Barrow County Airport.
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[FR Doc. 2024–09646 Filed 5–10–24; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF STATE
22 CFR Parts 50, 51, and 71
[Public Notice: 12387]
Department of State.
ACTION: Final rule.
AGENCY:
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 thirdparty 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.
SUMMARY:
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
SUPPLEMENTARY INFORMATION:
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(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
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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
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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 inperson appointment, including one at
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41309
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.
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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.
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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
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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
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.
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(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
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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.
■ 3. Add subpart D, consisting of
§ 50.52, to read as follows:
Subpart D—Third-Party Attendance at
Appointments for Passport and
Consular Report of Birth Abroad
(CRBA) Appointments
§ 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 thirdparty attendee or attorney may, at their
own expense, bring their own
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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
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7. 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 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.
§ 71.5
[Amended]
8. Amend § 71.5 by removing the
words ‘‘officer of the Foreign Service’’
and adding ‘‘diplomatic or consular
officer of the United States’’ in its place.
■
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).
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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.
§ 71.6
[Amended]
9. Amend § 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.
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BILLING CODE 4710–25–P
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5. Add § 51.29 to subpart B to read as
follows:
DEPARTMENT OF HOMELAND
SECURITY
§ 51.29 Attorney or other third-party
assistance.
Coast Guard
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.
33 CFR Part 100
PART 71—PROTECTION AND
WELFARE OF CITIZENS AND THEIR
PROPERTY
AGENCY:
6. The authority citation for part 71 is
revised to read as follows:
SUMMARY:
■
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[Docket No. USCG–2024–0258]
Special Local Regulations; Recurring
Marine Events, Seventh Coast Guard
District
Coast Guard, DHS.
Notification of enforcement of
regulation.
ACTION:
The Coast Guard will enforce
special local regulations for the 86th
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41311
Annual Brunswick Blessing of the Fleet
event on May 11, 2024, to provide for
the safety of life on navigable waterways
during this event. Our regulation for
marine events within the Seventh Coast
Guard District identifies the regulated
area for this event in Brunswick, GA.
During the enforcement periods, no
person or vessel may enter, transit
through, anchor in, or remain within the
regulated area unless authorized by the
Coast Guard Patrol Commander or a
designated representative.
DATES: The regulations in 33 CFR
100.701 will be enforced from 10 a.m.
through 4 p.m., on May 11, 2024, for the
regulated area listed in paragraph (d),
Item No. 1 of Table 1 to § 100.701.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this
notification of enforcement, call or
email Lieutenant Anthony Harris,
Marine Safety Unit Savannah
Waterways Division, U.S. Coast Guard;
telephone 912–210–8714, email at
Anthony.E.Harris@uscg.mil.
SUPPLEMENTARY INFORMATION: The Coast
Guard will enforce special local
regulations in 33 CFR 100.701 for the
86th Annual Brunswick, Blessing of the
Fleet event regulated area identified in
paragraph (d) of Table 1 to § 100.701,
Item No. 1, from 10 a.m. through 4 p.m.
on May 11, 2024. This action is being
taken to provide for the safety of life on
navigable waterways during this event.
Our regulation for recurring marine
events within the Seventh Coast Guard
District, § 100.701, Table 1 to § 100.701,
paragraph (d), Item No.1, specifies the
location of the regulated area for the
Annual Brunswick Blessing of the Fleet
event, which encompasses portions of
the Brunswick River from the start of
the East branch of the Brunswick River
(East Brunswick River) to the Golden
Isles Parkway Bridge. Under the
provisions of 33 CFR 100.701, all
persons and vessels are prohibited from
entering the regulated area, except those
persons and vessels participating in the
event, unless they receive permission to
do so from the Coast Guard Patrol
Commander, or designated
representative.
Under the provisions of 33 CFR
100.701, spectator vessels may safely
transit outside the regulated area, but
may not anchor, block, loiter in, impede
the transit of festival participants or
official patrol vessels or enter the
regulated area without approval from
the Coast Guard Patrol Commander or a
designated representative. The Coast
Guard may be assisted by other Federal,
State, or local law enforcement agencies
in enforcing this regulation. In addition
to this notice of enforcement in the
E:\FR\FM\13MYR1.SGM
13MYR1
Agencies
[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.
-----------------------------------------------------------------------
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]
BILLING CODE 4710-25-P