Passport Procedures-Amendment to Passport Regulations

AGENCY:

State Department.

ACTION:

Interim rule.

SUMMARY:

This interim rule amends the regulation implementing the statutory requirement that both parents consent to issuance of a passport for children under 14 years to require that a statement of consent submitted in support of a minor's application be notarized. The rule will ensure that the individual providing the signature is properly identified.

DATES:

The effective date is November 1. The Department will accept comments from the public up to 30 days from November 12, 2004.

ADDRESSES:

Written comments should be addressed to: Chief, Legal Division, Office of Passport Policy, Planning and Advisory Services, 2100 Pennsylvania Ave., NW., 3rd Floor, Washington, DC 20037. E-mail for comments: PassportRules@state.gov.

Persons with access to the internet may also view this notice and provide comment by going to the regulations.gov Web site at: http://www.regulations.gov/index.cfm.

FOR FURTHER INFORMATION CONTACT:

Sharon Palmer-Royston, Office of Passport Policy, Planning and Advisory Services, Bureau of Consular Affairs, Department of State 202-663-2662; Fax 202-663-2654.

SUPPLEMENTARY INFORMATION:

22 U.S.C. 213 provides that before a U.S. passport can be issued the applicant “shall subscribe to and submit a written application which shall contain a true recital of each and every matter of fact which may be required by law or by any rules authorized by law.” Section 236 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Public Law 106-113, 113 Stat. 1501A-420 (22 U.S.C. 213n) (“2-Parent Consent Statute”) provides that the Secretary shall require documentary proof of both parents' or the legal guardian's consent before issuing passports to children under age 14 “under penalty of perjury.” The requirement was added as a measure to prevent the use of the United States passport in international child abduction, and was implemented by Section 51.27(b) of Title 22, Code of Federal Regulations (CFR) (published at 66 Fed. Reg. 29904, June 4, 2001). Section 51.27(b)(2) provides that both parents must execute a passport application on behalf of a minor under age 14 or, if only one parent or a legal guardian executes the application, such parent or guardian must provide documentary evidence that he or she is the sole parent or has sole custody of the child or that he or she has the non-applying parent's or guardian's consent, if applicable, to the issuance of the passport. Subsection 51.27(b)(2)(ii)(B) provides that the applying parent or guardian may provide a written statement of consent from the non-applying parent or guardian, if applicable, to the issuance of the passport.

Passport Applications of Minors Under Age 14

Since the 2000 implementation of the 2-Parent Consent Statute by 22 CFR 51.27, there have been public comments and expressions of concern regarding the lack of independent verification of the identity of the individual signing the statement of consent.

It has become evident that some parental applicants are providing affidavits that are signed by individuals other than the non-applying parent, despite the provisions of 18 U.S.C. 1544, 1101 and 22 CFR 51.1(g) which provide that individuals providing false information as part of a passport application, whether contemporaneously with the application form or at any other time, are subject to prosecution for passport fraud or perjury under all applicable criminal statutes, including but not limited to 18 U.S.C. 1001, 1541, et seq. and 1621. Some applying parents who submit forged consent statements often do so to abduct their child or otherwise interfere with the rights of the non-applying parent. Most, however, are only going on vacation or obtaining the passport against the wishes of the other parent.

This Interim Rule amends Subsection 51.27(b)(2)(ii)(B) to require that the written statement of consent of the non-applying parent be notarized. The purpose of this change is to prevent forgery and to ensure that the individual signing the consent statement submitted with the passport application has been properly identified. This change will substantially reduce the possibility of the submission of false statements of consent. This rule needs to be implemented immediately to strengthen fraud prevention to avoid further instances of the applying parent submitting a false statement of consent and to reduce the possibility of a U.S passport being used in an effort to interfere with the custodial rights of the non-applying parent.

Regulatory Findings

Administrative Procedure Act

The Department is publishing this rule as an interim rule, with a 30-day provision for post-promulgation public comments, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). It is dictated by the necessity of establishing additional controls over the documentation of U.S. citizens who are ages 14 and under, to help prevent the possible misuse of a passport in facilitating international child abduction.

Regulatory Flexibility Act/Executive Order 13272

These changes to the regulations are hereby certified as not expected to have a significant impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

The Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

The Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule does not result in any such expenditure nor will it significantly or uniquely affect small governments.

Executive Order 13132: Federalism

The Department finds that this regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor does the rule have federalism implications warranting the application of Executive Order No. 12372 and No. 13132.

Executive Order 12866: Regulatory Review

This rule is exempt from E.O. 12866, but the Department has reviewed the rule to ensure consistency with the objectives of the Executive Order and has determined that the regulations do not constitute a significant regulatory action within the meaning of the Executive Order.

Executive Order 12988: Civil Justice Reform

The Department has reviewed the regulation in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Paperwork Reduction Act of 1995

This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

The Treasury and General Government Appropriations Act of 1999—Assessment of Federal Regulations and Policies on Families

In light of the nature of these regulations and section 654 of the Treasury and General Government Appropriations Act of 1999, Public Law 105-277, 112 Stat. 2681 (1998), the Department has assessed the impact of these proposed regulations on family well being in accordance with section 654(c) of that Act. This rule is intended to promote child and family safety by helping prevent child abduction and international child trafficking.

List of Subjects in 22 CFR Part 51

• Administrative practice and procedure
• Drug traffic control
• Passports and visas

Accordingly, the Department amends 22 CFR Chapter I as follows:

PART 51—[AMENDED]

1. The authority citation for Part 51 continues to read as follows:

Authority: 22 U.S.C. 211a, 213, 2651a, 2671(d)(3), 2714 and 3926; 31 U.S.C. 9701; E.O. 11295, 3 CFR, 1966-1970 Comp., p 570; sec. 236, Public Law 106-113, 113 Stat. 1501A-430; 18 U.S.C. 1621(a)(2).

2. Revise § 51.27(b)(2)(iii)(B) to read as follows: