83_FR_21964 83 FR 21872 - Passports

83 FR 21872 - Passports

DEPARTMENT OF STATE

Federal Register Volume 83, Issue 92 (May 11, 2018)

Page Range21872-21876
FR Document2018-09995

This final rule provides various changes and updates to the Department of State passport rules. The final rule incorporates statutory passport denial and revocation requirements for certain convicted sex offenders. It notes that, notwithstanding the legal bases for denial or revocation of a passport, the Department may issue a passport for direct return to the United States. It sets out the Department's procedures for denying and cancelling Consular Reports of Birth Abroad. Finally, the final rule provides additional information relating to the conduct of review hearings.

Federal Register, Volume 83 Issue 92 (Friday, May 11, 2018)
[Federal Register Volume 83, Number 92 (Friday, May 11, 2018)]
[Rules and Regulations]
[Pages 21872-21876]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09995]


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DEPARTMENT OF STATE

22 CFR Parts 50 and 51

[Public Notice 10383]
RIN 1400-AD54


Passports

AGENCY: Department of State.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule provides various changes and updates to the 
Department of State passport rules. The final rule incorporates 
statutory passport denial and revocation requirements for certain 
convicted sex offenders. It notes that, notwithstanding the legal bases 
for denial or revocation of a passport, the Department may issue a 
passport for direct return to the United States. It sets out the 
Department's procedures for denying and cancelling Consular Reports of 
Birth Abroad. Finally, the final rule provides additional information 
relating to the conduct of review hearings.

DATES: This rule is effective on May 11, 2018.

FOR FURTHER INFORMATION CONTACT: Anita Mody, Office of Legal Affairs, 
Passport Services, (202) 485-6500, [email protected]. Hearing- or 
speech-impaired persons may use the Telecommunications Devices for the 
Deaf (TDD) by contacting the Federal Information Relay Service at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: The Department published a proposed rule, 
Public Notice 9804 at 82 FR 58778, December 14, 2017, with a request 
for comments, amending various sections of Parts 50 and 51 of Title 22 
of the Code of Federal Regulations. The rule was proposed primarily to 
revise Department of State regulations relating to the denial and 
revocation of passports, and provide additional information relating to 
the conduct of review hearings. The rule and the Department's reasons 
for the changes were discussed in detail in Public Notice 9804. The 
Department is now promulgating a final rule.
    The final rule contains one minor change, one technical fix, and no 
substantive changes. The change, in

[[Page 21873]]

response to a comment received, clarifies in 22 CFR 51.70(b)(3) that 
the section referenced only applies to passport cards.
    Analysis of Comments: The comment period for the proposed rule 
closed February 12, 2018, after a 60-day comment period. One comment 
was received. The comment raised two issues:
    (1) As 22 CFR 51.60(g) specifies that the Department shall not 
issue passport cards to certain convicted sex offenders, the 
parenthetical descriptor in proposed 22 CFR 51.70(b)(3): ``Section 
51.60(g) (denial of passports to certain convicted sex offenders)'' 
should specify that it only applies to passport cards.
    Response: The Department's final rule specifies ``cards'' in the 
parenthetical descriptor, such that 22 CFR 51.70(b)(3) now reads: 
Section 51.60(g) (denial of passport cards to certain convicted sex 
offenders).
    (2) The governing statute, 22 U.S.C. 212b, allows but does not 
require the Department to revoke the existing passports held by covered 
sex offenders that do not bear the ``unique identifier'' required by 
that statute. See 22 U.S.C. 212b(b)(1) (``[T]he Secretary of State . . 
. may revoke a passport previously issued without [] an identifier of a 
covered sex offender.'' [emphasis added]). The proposed rules therefore 
err in processing revocations on this basis in the same manner as 
revocations on other bases, such as a conviction for ``sexual tourism'' 
under 18 U.S.C. 2423 and 22 U.S.C. 212a(b)(1). The proposed rules also 
err in rendering the passports currently held by ``covered sex 
offenders'' to be invalid immediately upon approval of the notice of 
revocation. That is because revocations for a sexual tourism conviction 
(and for other reasons) are mandatory, while the revocation of 
passports issued to ``covered sex offenders'' is not mandatory under 22 
U.S.C. 212b or any other provision of law. In addition, individuals 
convicted of sexual tourism are categorically ineligible to hold 
passports during the period following their conviction. In contrast, 
``covered sex offenders'' under 22 U.S.C. 212b are allowed to carry 
their existing passports that do not bear the identifier for an 
indeterminate period of time, until that passport is revoke by the 
Department. Because ``covered sex offenders'' who currently possess 
passports are not in violation of the law, they should not be treated 
the same as individuals whose current possession of a passport is 
illegal. The governing statute, 22 U.S.C. 212b(b)(1), gives the 
Department the discretion to avoid this inequitable and unduly 
disruptive result by providing a reasonable time for ``covered sex 
offenders'' to apply for and obtain new, compliant passports before 
their existing passports are revoked. ACSOL therefore requests that the 
Department provide this accommodation by revising the Proposed Rules so 
that ``covered sex offenders'' are not prevented from possessing and 
using passports while they await the delivery of passports that comply 
with 22 U.S.C. 212b.''
    Response: The Department declines to process passport revocations 
differently when revoked based on discretionary authority versus where 
revocation is mandatory, and notes the effect of the decision to revoke 
the passport--making the passport invalid--is the same in both cases. 
Adopting the commenter's suggestion that a passport not become invalid 
after it was revoked would negate the purpose of the revocation action. 
Moreover, in response to concern that covered sex offenders be afforded 
an opportunity to apply for and obtain new, compliant passports before 
their existing passports are revoked, such persons are on notice about 
the new revocation grounds and may always apply for a new passport with 
the required endorsement prior to expiration of or revocation of their 
current one. To the extent the comment addresses the Department's 
determination to revoke passports under 22 U.S.C. 212b, such issues are 
outside the scope of the immediate rule as they are already specified 
in the current regulations at 22 CFR 51.60(a)(4) and 22 CFR 
51.62(a)(1).
    Finally, the Department noticed a typographical error in a citation 
included in the proposed rule. The citation relating to qualified 
interpreters (see Sec.  51.71(d)) should be ``28 U.S.C. 1827.'' It is 
corrected in this final rule.

Regulatory Analysis and Notices

Executive Orders 12866 and 13771

    The Department finds that this final rulemaking implements 
Congressional intent as reflected in the Immigration and Naturalization 
Act, and that the benefits of the rulemaking outweigh any costs to the 
public. The Office of Information and Regulatory Affairs has designated 
this final rule as non-significant within the meaning of Executive 
Order 12866. Consequently, no actions are required pursuant to 
Executive Order 13771.

Consultations 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 Executive Order 13175 do not apply to 
this rulemaking.

Paperwork Reduction Act

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

The Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995, 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 Orders 12372 and 13132

    This rulemaking does not have sufficient federalism implications to 
require consultations or warrant the preparation of a federalism 
summary impact statement. The regulations implementing Executive Order 
12372 regarding intergovernmental consultation on Federal programs and 
activities do not apply to this rulemaking.

Executive Order 12988

    The Department of State has reviewed this rulemaking in light of 
sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
ambiguity, minimize litigation, establish clear legal standards, and 
reduce burden.

Small Business Regulatory Enforcement Fairness Act of 1996

    The Department does not believe this rulemaking is a major rule 
under the criteria of 5 U.S.C. 804.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    The Department certifies that this rule is 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 et seq., and 
Executive Order 13272, section 3(b), as the rule being amended covers 
only individuals.

List of Subjects

22 CFR Part 50

    Citizenship and naturalization.

22 CFR Part 51

    Administrative practice and procedure, Drug traffic control,

[[Page 21874]]

Passports and visas, Reporting and recordkeeping requirements.

    Accordingly, for the reasons set forth in the preamble, 22 CFR 
parts 50 and 51 are amended as follows:

PART 50--NATIONALITY PROCEDURES

0
1. The authority citation 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.  50.7 by revising paragraph (d) to read 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 Abroad may be cancelled in 
accordance with applicable provisions in 22 CFR 51.60 through 51.74.

0
3. Amend Sec.  50.11 by revising paragraph (b) to read as follows:


Sec.  50.11   Certificate of identity for travel to the United States 
to apply for admission.

* * * * *
    (b) When a diplomatic or consular officer denies an application for 
a certificate of identity under this section, the applicant may submit 
a written appeal to the Secretary through the U.S. embassy or consulate 
where the individual applied for the certificate of identity, stating 
the pertinent facts, the grounds upon which U.S. nationality is 
claimed, and his or her reasons for considering that the denial was not 
justified.

PART 51--PASSPORTS

0
4. The authority citation for part 51 is revised to read as follows:

    Authority:  8 U.S.C. 1504; 18 U.S.C. 1621, 2423; 22 U.S.C. 211a, 
212, 212a, 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, 2721, 3926; 26 U.S.C. 
6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of P.L. 
103-317, 108 Stat. 1760]; E.O. 11295, FR 10603; Pub. L. 114-119, 130 
Stat. 15; Sec. 1 of P.L. 109-210, 120 Stat. 319; Sec. 2 of P.L. 109-
167, 119 Stat. 3578; Sec. 5 of P.L. 109-472, 120 Stat. 3554; P.L. 
108-447, Div. B, Title IV 118 Stat. 2896; P.L. 108-458, 118 Stat. 
3638, 3823.


0
5. Amend Sec.  51.4 by revising paragraph (g)(1) and adding paragraph 
(g)(8) to read as follows:


Sec.  51.4   Validity of passports.

* * * * *
    (g) * * *
    (1) The Department approves the revocation notification pursuant to 
Sec.  51.65(a); or
* * * * *
    (8) The Department approves a Certificate of Loss of Nationality 
for the passport holder pursuant to Sec.  50.40 of this chapter and 8 
U.S.C. 1481.

0
6. Revise the heading of subpart E to read as follows:

Subpart E--Denial, Revocation, and Restriction of Passports and 
Cancellation of Consular Reports of Birth Abroad

0
7. Amend Sec.  51.60 by adding paragraphs (h) and (i) to read as 
follows:


Sec.  51.60   Denial and restriction of passports.

* * * * *
    (h) The Department may not issue a passport, except a limited 
validity passport for direct return to the United States or in 
instances where the Department finds that emergency circumstances or 
humanitarian reasons exist, in any case in which the Department is 
notified by the Attorney General that, during the covered period as 
defined by 22 U.S.C. 212a:
    (1) The applicant was convicted of a violation of 18 U.S.C. 2423, 
and
    (2) The individual used a passport or passport card or otherwise 
crossed an international border in committing the underlying offense.
    (i) In appropriate circumstances, where an individual's passport 
application is denied or passport revoked consistent with this part, 
the Department may issue a limited validity passport good only for 
direct return to the United States.

0
8. Revise Sec.  51.62 to read as follows:


Sec.  51.62  Revocation or limitation of passports and cancellation of 
Consular Reports of Birth Abroad.

    (a) The Department may revoke or limit a passport when:
    (1) The bearer of the passport may be denied a passport under 22 
CFR 51.60 or 51.61 or any other applicable provision contained in this 
part;
    (2) The passport was illegally, fraudulently or erroneously 
obtained from the Department; or was created through illegality or 
fraud practiced upon the Department; or
    (3) The passport has been fraudulently altered or misused.
    (b) The Department may revoke a passport when the Department has 
determined that the bearer of the passport is not a U.S. national, or 
the Department is on notice that the bearer's certificate of 
citizenship or certificate of naturalization has been cancelled.
    (c) The Department may cancel a Consular Report of Birth Abroad 
when:
    (1) The Consular Report of Birth Abroad was illegally, fraudulently 
or erroneously obtained from the Department, or was created through 
illegality or fraud practiced upon the Department;
    (2) The Consular Report of Birth Abroad has been fraudulently 
altered or misused; or
    (3) The Department has determined that the bearer of the Consular 
Report of Birth Abroad is not a U.S. national, or the Department is on 
notice that the bearer's certificate of citizenship has been cancelled.
    (d) The Department shall revoke a U.S. passport in any case in 
which the Department is notified by the Attorney General, that during 
the covered period as defined by 22 U.S.C. 212a:
    (1) The applicant was convicted of a violation of 18 U.S.C. 2423, 
and
    (2) The individual used a passport or otherwise crossed an 
international border in committing the underlying offense.
    (3) Notwithstanding paragraphs (d)(1) and (2) of this section, the 
Department may issue a limited validity passport for direct return to 
the United States.

0
9. Revise Sec.  51.65 to read as follows:


Sec.  51.65  Notification of denial, revocation or cancellation of 
passports and Consular Reports of Birth Abroad.

    (a) The Department will send notice in writing to any person whose 
application for issuance of a passport or Consular Report of Birth 
Abroad has been denied, whose passport has been revoked, or whose 
Consular Report of Birth Abroad has been cancelled. The notification 
will set forth the specific reasons for the denial, revocation or 
cancellation and, if applicable, the procedures for review available 
under 22 CFR 51.70 through 51.74.
    (b) An application for a passport or Consular Report of Birth 
Abroad will be denied if an applicant fails to meet his or her burden 
of proof under the applicable regulations or otherwise does not provide 
documentation sufficient to establish entitlement to a passport or a 
Consular Report of Birth Abroad, or does not provide additional 
information as requested by the Department within the time provided in 
the notification by the Department that additional information is 
required. Thereafter, if an applicant wishes the Department to 
adjudicate his or her claim of entitlement to a passport or Consular 
Report of Birth Abroad, he or she must submit a new application, 
supporting documents, and photograph, along with all applicable fees.

[[Page 21875]]

    (c) The Department may, in its sole discretion, administratively 
re-open a previously filed passport or Consular Report of Birth Abroad 
application in order to issue a passport or Consular Report of Birth 
Abroad.

0
10. Revise Sec.  51.66 to read as follows:


Sec.  51.66  Surrender of passport and/or Consular Report of Birth 
Abroad.

    The bearer of a passport that is revoked or of a Consular Report of 
Birth Abroad that is cancelled must surrender it to the Department or 
its authorized representative upon demand.

0
11. Revise Sec.  51.70 to read as follows:


Sec.  51.70  Request for hearing to review certain denials and 
revocations.

    (a) A person whose passport has been denied or revoked under 22 CFR 
51.60(b)(1) through (10), 51.60(c), 51.60(d), 51.61(b), 51.62(a)(1), or 
51.62(a)(2), or whose Consular Report of Birth Abroad is cancelled 
under Sec.  51.62(c)(1) or Sec.  51.62(c)(2), may request a hearing to 
review the basis for the denial, revocation, or cancellation, provided 
that the Department receives such a request, in writing, from such 
person or his or her attorney within 60 days of his or her receipt of 
the notice of the denial, revocation, or cancellation. Failure to 
timely request a hearing means the denial, revocation, or cancellation 
is the Department's final action.
    (b) The provisions of Sec. Sec.  51.70 through 51.74 do not apply 
to any action of the Department denying, restricting, revoking, 
cancelling or invalidating a passport or Consular Report of Birth 
Abroad, or in any other way adversely affecting the ability of a person 
to receive or use a passport or Consular Report of Birth Abroad, for 
reasons not set forth in Sec.  51.70(a), including, as applicable, 
those listed at:
    (1) Section 51.60(a) (instances where the Department may not issue 
a passport, except for direct return to the United States);
    (2) Section 51.60(f) (failure to provide a social security number, 
or purposefully providing an incorrect number);
    (3) Section 51.60(g) (denial of passport cards to certain convicted 
sex offenders);
    (4) Section 51.61(a) (denial of passports to certain convicted drug 
traffickers);
    (5) Section 51.62(b) (revocation of passports for non-U.S. 
nationals or where a certificate of citizenship or naturalization has 
been cancelled);
    (6) Section 51.62(c)(3) (cancellation of a Consular Report of Birth 
Abroad upon the Department's determination that the bearer is not a 
U.S. national or where a certificate of citizenship has been 
cancelled);
    (7) Section 51.62(d) (revocation of passports issued to certain 
convicted sex offenders);
    (8) Section 51.64 (specially validated passports);
    (9) Any other provision not listed at Sec.  51.70(a).
    (c) If a timely request for a hearing is made by a person seeking a 
hearing in accordance with these regulations, the Department will make 
reasonable efforts to hold the hearing within 90 days of the date the 
Department receives the request.
    (d) Within a reasonable period of time prior to the hearing, the 
Department will give the person requesting the hearing written notice 
of the date, time and place of the hearing and copies of the evidence 
relied on in denying, revoking, or cancelling the passport or Consular 
Report of Birth Abroad.
    (e) The person requesting the hearing may obtain one continuance, 
not to exceed an additional 90 days, upon written request. The request 
for a continuance must be received by the Department as soon as 
practicable and in no case less than five business days prior to the 
scheduled hearing date. Any further continuances are within the sole 
discretion of the Department.

0
12. Revise Sec.  51.71 to read as follows:


Sec.  51.71   The hearing.

    (a) The Department will name a hearing officer, who will generally 
be a Department employee from the Bureau of Consular Affairs. The 
hearing officer will make only preliminary findings of fact and submit 
recommendations based on the record of the hearing, as defined in 22 
CFR 51.72, to the Deputy Assistant Secretary for Passport Services, or 
his or her designee, in the Bureau of Consular Affairs.
    (b) The hearing shall take place in Washington, DC or, if the 
person requesting the hearing is overseas, at the appropriate U.S. 
diplomatic or consular post. The person requesting the hearing must 
appear in person or with or through his or her attorney. Failure to 
appear at the scheduled hearing will constitute an abandonment of the 
request for a hearing, and the Department's revocation, cancellation or 
denial will be considered the Department's final action.
    (c) Any attorney appearing at a hearing 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, or be admitted to 
practice before the courts of the country in which the hearing is to be 
held.
    (d) There is no right to subpoena witnesses or to conduct 
discovery. However, the person requesting the hearing may testify in 
person, offer evidence in his or her own behalf, present witnesses, and 
make arguments at the hearing. The person requesting the hearing is 
responsible for all costs associated with the presentation of his or 
her case, including the cost of interpreters, who must be certified in 
accordance with standards established for federal courts under 28 
U.S.C. 1827. The Department may present witnesses, offer evidence, and 
make arguments in its behalf. The Department is responsible for all 
costs associated with the presentation of its case.
    (e) The hearing is informal and permissive. As such, the provisions 
of 5 U.S.C. 554 et seq. do not apply to the hearing. Formal rules of 
evidence also do not apply; however, the hearing officer may impose 
reasonable restrictions on relevancy, materiality, and competency of 
evidence presented. Testimony will be under oath or by affirmation 
under penalty of perjury. The hearing officer may not consider any 
information that is not also made available to the person requesting 
the hearing, the Department, and made a part of the record of the 
proceeding.
    (f) If any witness is unable to appear, the hearing officer may, in 
his or her discretion, accept an affidavit or sworn deposition 
testimony of the witness, the cost for which will be the responsibility 
of the requesting party, subject to such limits as the hearing officer 
deems appropriate.
    (g) The person requesting the hearing and the Department of State 
may submit written briefs or argument prior to the hearing, but it is 
not required. The hearing officer will specify the date and schedule 
for the parties to submit written briefs, should they choose to do so.
    (h) The purpose of the hearing is to provide the person requesting 
the hearing an opportunity to challenge the basis for the Department's 
decision to deny or revoke the passport, or cancel the Consular Report 
of Birth Abroad. The burden of production is on the Department, and the 
Department shall provide the evidence it relied upon in revoking or 
denying the passport, or cancelling the Consular Report of Birth 
Abroad, prior to the hearing. The burden of persuasion is on the person 
requesting the hearing, to prove by a preponderance of the evidence 
that the Department improperly revoked the passport or denied the 
passport application, or cancelled the Consular

[[Page 21876]]

Report of Birth Abroad, based on the facts and law in effect at the 
time such action was taken.

0
13. Revise Sec.  51.72 to read as follows:


Sec.  51.72   Transcript and record of the hearing.

    A qualified reporter, provided by the Department, will make a 
complete verbatim transcript of the hearing. The person requesting the 
hearing or his or her attorney may review and purchase a copy of the 
transcript directly from the reporter. The hearing transcript and all 
the information and documents received by the hearing officer, whether 
or not deemed relevant, will constitute the record of the hearing. The 
hearing officer's preliminary findings and recommendations are 
deliberative, and shall not be considered part of the record unless 
adopted by the Deputy Assistant Secretary for Passport Services, or his 
or her designee.

0
14. Revise Sec.  51.73 to read as follows:


Sec.  51.73   Privacy of hearing.

    Only the person requesting the hearing, his or her attorney, an 
interpreter, the hearing officer, the reporter transcribing the 
hearing, and employees of the Department concerned with the 
presentation of the case may be present at the hearing. Witnesses may 
be present only while actually giving testimony or as otherwise 
directed by the hearing officer.

0
15. Revise Sec.  51.74 to read as follows:


Sec.  51.74   Final decision.

    After reviewing the record of the hearing and the preliminary 
findings of fact and recommendations of the hearing officer, and 
considering legal and policy considerations he or she deems relevant, 
the Deputy Assistant Secretary for Passport Services, or his or her 
designee, will decide whether to uphold the denial or revocation of the 
passport or cancellation of the Consular Report of Birth Abroad. The 
Department will promptly notify the person requesting the hearing of 
the decision in writing. If the decision is to uphold the denial, 
revocation, or cancellation, the notice will contain the reason(s) for 
the decision. The decision is final and is not subject to further 
administrative review.

    Dated: May 3, 2018.
Carl C. Risch,
Assistant Secretary of State for Consular Affairs, Department of State.
[FR Doc. 2018-09995 Filed 5-10-18; 8:45 am]
 BILLING CODE 4710-06-P



                                              21872                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              Interested parties were invited to                      Environmental Review                                      Issued in Seattle, Washington, on May 4,
                                              participate in this rulemaking effort by                                                                        2018.
                                              submitting written comments on the                         The FAA has determined that this                     B.G. Chew,
                                              proposal to the FAA. No comments                        action qualifies for categorical exclusion              Acting Group Manager, Operations Support
                                              were received.                                          under the National Environmental                        Group, Western Service Center.
                                                 Class E airspace designations are                    Policy Act in accordance with FAA                       [FR Doc. 2018–09988 Filed 5–10–18; 8:45 am]
                                              published in paragraph 6005 of FAA                      Order 1050.1F, ‘‘Environmental
                                                                                                                                                              BILLING CODE 4910–13–P
                                              Order 7400.11B, dated August 3, 2017,                   Impacts: Policies and Procedures,’’
                                              and effective September 15, 2017, which                 paragraph 5–6.5a. This airspace action
                                              is incorporated by reference in 14 CFR                  is not expected to cause any potentially
                                                                                                      significant environmental impacts, and                  DEPARTMENT OF STATE
                                              71.1. The Class E airspace designation
                                              listed in this document will be                         no extraordinary circumstances exist
                                                                                                                                                              22 CFR Parts 50 and 51
                                              published subsequently in the Order.                    that warrant preparation of an
                                                                                                      environmental assessment.                               [Public Notice 10383]
                                              Availability and Summary of
                                              Documents for Incorporation by                          Lists of Subjects in 14 CFR Part 71                     RIN 1400–AD54
                                              Reference
                                                                                                       Airspace, Incorporation by reference,                  Passports
                                                 This document amends FAA Order                       Navigation (air).
                                              7400.11B, Airspace Designations and                                                                             AGENCY:    Department of State.
                                              Reporting Points, dated August 3, 2017,                 Adoption of the Amendment
                                                                                                                                                              ACTION:   Final rule.
                                              and effective September 15, 2017. FAA                     In consideration of the foregoing, the
                                              Order 7400.11B is publicly available as                 Federal Aviation Administration                         SUMMARY:    This final rule provides
                                              listed in the ADDRESSES section of this                 amends 14 CFR part 71 as follows:                       various changes and updates to the
                                              document. FAA Order 7400.11B lists                                                                              Department of State passport rules. The
                                              Class A, B, C, D, and E airspace areas,                 PART 71—DESIGNATION OF CLASS A,                         final rule incorporates statutory
                                              air traffic service routes, and reporting               B, C, D, AND E AIRSPACE AREAS; AIR                      passport denial and revocation
                                              points.                                                 TRAFFIC SERVICE ROUTES; AND                             requirements for certain convicted sex
                                                                                                      REPORTING POINTS                                        offenders. It notes that, notwithstanding
                                              The Rule
                                                                                                                                                              the legal bases for denial or revocation
                                                The FAA is amending Title 14 Code                     ■ 1. The authority citation for part 71                 of a passport, the Department may issue
                                              of Federal Regulations (14 CFR) part 71                 continues to read as follows:                           a passport for direct return to the United
                                              by establishing Class E airspace                                                                                States. It sets out the Department’s
                                              extending upward from 700 feet above                      Authority: 49 U.S.C. 106(f), 106(g); 40103,
                                                                                                      40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,            procedures for denying and cancelling
                                              the surface at Bear Lake County Airport,                                                                        Consular Reports of Birth Abroad.
                                                                                                      1959–1963 Comp., p. 389.
                                              Paris, ID, within a 6.6-mile radius of the                                                                      Finally, the final rule provides
                                              airport, and within a rectangular                       § 71.1       [Amended]                                  additional information relating to the
                                              segment east of the airport extending                                                                           conduct of review hearings.
                                              approximately 15.3 miles wide (from                     ■ 2. The incorporation by reference in
                                                                                                      14 CFR 71.1 of FAA Order 7400.11B,                      DATES: This rule is effective on May 11,
                                              east to west) and 28.1 miles tall (from                                                                         2018.
                                              north to south), and a trapezoidal area                 Airspace Designations and Reporting
                                                                                                      Points, dated August 3, 2017, and                       FOR FURTHER INFORMATION CONTACT:
                                              west of the airport extending
                                              approximately 10.5 miles wide (from                     effective September 15, 2017, is                        Anita Mody, Office of Legal Affairs,
                                              east to west) and 33.8 miles tall (from                 amended as follows:                                     Passport Services, (202) 485–6500,
                                              north to south).                                                                                                PassportRules@state.gov. Hearing- or
                                                                                                      Paragraph 6005 Class E Airspace Areas
                                                                                                      Extending Upward From 700 Feet or More
                                                                                                                                                              speech-impaired persons may use the
                                              Regulatory Notices and Analyses                         Above the Surface of the Earth.                         Telecommunications Devices for the
                                                 The FAA has determined that this                                                                             Deaf (TDD) by contacting the Federal
                                                                                                      *        *      *      *       *
                                              regulation only involves an established                                                                         Information Relay Service at 1–800–
                                              body of technical regulations for which                 ANM ID E5 Paris, ID [New]                               877–8339.
                                              frequent and routine amendments are                     Bear Lake County Airport, ID                            SUPPLEMENTARY INFORMATION: The
                                              necessary to keep them operationally                      (Lat. 42°14′59″ N, long. 111°20′30″ W)                Department published a proposed rule,
                                              current, is non-controversial and                         That airspace extending upward from 700               Public Notice 9804 at 82 FR 58778,
                                              unlikely to result in adverse or negative               feet above the surface of Bear Lake County              December 14, 2017, with a request for
                                              comments. It, therefore: (1) Is not a                   Airport within the area bounded by lat.                 comments, amending various sections of
                                              ‘‘significant regulatory action’’ under                 42°29′26″ N, long. 111°36′13″ W; to lat.                Parts 50 and 51 of Title 22 of the Code
                                                                                                      42°29′32″ N, long. 111°28′55″ W; to lat.
                                              Executive Order 12866; (2) is not a                     42°21′52″ N, long. 111°28′07″ W; to the point
                                                                                                                                                              of Federal Regulations. The rule was
                                              ‘‘significant rule’’ under DOT                          where the airport 325° bearing intersects the           proposed primarily to revise
                                              Regulatory Policies and Procedures (44                  airport 6.6-mile radius; thence clockwise               Department of State regulations relating
                                              FR 11034; February 26, 1979); and (3)                   along the 6.6-mile radius of the airport to the         to the denial and revocation of
                                              does not warrant preparation of a                       airport 017° bearing, to lat. 42°34′39″ N, long.        passports, and provide additional
                                              Regulatory Evaluation as the anticipated                111°19′45″ W; to lat. 42°35′06″ N, long.                information relating to the conduct of
                                              impact is so minimal. Since this is a                   110°59′38″ W; to lat. 42°08′06″ N, long.                review hearings. The rule and the
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                                              routine matter that only affects air traffic            110°54′19″ W; to lat. 42°05′45″ N, long.                Department’s reasons for the changes
                                              procedures and air navigation, it is                    111°15′34″ W; to the point where the airport            were discussed in detail in Public
                                                                                                      150° bearing intersects the 6.6-mile radius of
                                              certified that this rule, when                          the airport, thence clockwise along the 6.6-
                                                                                                                                                              Notice 9804. The Department is now
                                              promulgated, will not have a significant                mile radius of the airport to the airport 226°          promulgating a final rule.
                                              economic impact on a substantial                        bearing, to lat. 41°55′22″ N, long. 111°25′20″             The final rule contains one minor
                                              number of small entities under the                      W; to lat. 41°55′58″ N, long. 111°44′44″ W;             change, one technical fix, and no
                                              criteria of the Regulatory Flexibility Act.             thence to the point of beginning.                       substantive changes. The change, in


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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                           21873

                                              response to a comment received,                         reasonable time for ‘‘covered sex                     pre-empt Tribal law. Accordingly, the
                                              clarifies in 22 CFR 51.70(b)(3) that the                offenders’’ to apply for and obtain new,              requirements of Executive Order 13175
                                              section referenced only applies to                      compliant passports before their                      do not apply to this rulemaking.
                                              passport cards.                                         existing passports are revoked. ACSOL
                                                 Analysis of Comments: The comment                                                                          Paperwork Reduction Act
                                                                                                      therefore requests that the Department
                                              period for the proposed rule closed                     provide this accommodation by revising                  This rule does not impose information
                                              February 12, 2018, after a 60-day                       the Proposed Rules so that ‘‘covered sex              collection requirements under the
                                              comment period. One comment was                         offenders’’ are not prevented from                    provisions of the Paperwork Reductions
                                              received. The comment raised two                        possessing and using passports while                  Act, 44 U.S.C. Chapter 35.
                                              issues:                                                 they await the delivery of passports that
                                                 (1) As 22 CFR 51.60(g) specifies that                                                                      The Unfunded Mandates Reform Act of
                                                                                                      comply with 22 U.S.C. 212b.’’
                                              the Department shall not issue passport                                                                       1995
                                                                                                         Response: The Department declines to
                                              cards to certain convicted sex offenders,               process passport revocations differently                 Section 202 of the Unfunded
                                              the parenthetical descriptor in proposed                when revoked based on discretionary                   Mandates Reform Act of 1995, 2 U.S.C.
                                              22 CFR 51.70(b)(3): ‘‘Section 51.60(g)                  authority versus where revocation is                  1532, generally requires agencies to
                                              (denial of passports to certain convicted               mandatory, and notes the effect of the                prepare a statement before proposing
                                              sex offenders)’’ should specify that it                 decision to revoke the passport—making                any rule that may result in an annual
                                              only applies to passport cards.                         the passport invalid—is the same in                   expenditure of $100 million or more by
                                                 Response: The Department’s final rule                both cases. Adopting the commenter’s                  State, local, or tribal governments, or by
                                              specifies ‘‘cards’’ in the parenthetical                suggestion that a passport not become                 the private sector. This rule does not
                                              descriptor, such that 22 CFR 51.70(b)(3)                invalid after it was revoked would                    result in any such expenditure nor will
                                              now reads: Section 51.60(g) (denial of                  negate the purpose of the revocation                  it significantly or uniquely affect small
                                              passport cards to certain convicted sex                 action. Moreover, in response to                      governments.
                                              offenders).                                             concern that covered sex offenders be
                                                 (2) The governing statute, 22 U.S.C.                                                                       Executive Orders 12372 and 13132
                                                                                                      afforded an opportunity to apply for and
                                              212b, allows but does not require the                                                                           This rulemaking does not have
                                                                                                      obtain new, compliant passports before
                                              Department to revoke the existing                                                                             sufficient federalism implications to
                                                                                                      their existing passports are revoked,
                                              passports held by covered sex offenders                                                                       require consultations or warrant the
                                                                                                      such persons are on notice about the
                                              that do not bear the ‘‘unique identifier’’
                                                                                                      new revocation grounds and may                        preparation of a federalism summary
                                              required by that statute. See 22 U.S.C.
                                                                                                      always apply for a new passport with                  impact statement. The regulations
                                              212b(b)(1) (‘‘[T]he Secretary of State
                                                                                                      the required endorsement prior to                     implementing Executive Order 12372
                                              . . . may revoke a passport previously
                                                                                                      expiration of or revocation of their                  regarding intergovernmental
                                              issued without [] an identifier of a
                                                                                                      current one. To the extent the comment                consultation on Federal programs and
                                              covered sex offender.’’ [emphasis
                                                                                                      addresses the Department’s                            activities do not apply to this
                                              added]). The proposed rules therefore
                                                                                                      determination to revoke passports under               rulemaking.
                                              err in processing revocations on this
                                              basis in the same manner as revocations                 22 U.S.C. 212b, such issues are outside               Executive Order 12988
                                              on other bases, such as a conviction for                the scope of the immediate rule as they
                                                                                                      are already specified in the current                     The Department of State has reviewed
                                              ‘‘sexual tourism’’ under 18 U.S.C. 2423
                                                                                                      regulations at 22 CFR 51.60(a)(4) and 22              this rulemaking in light of sections 3(a)
                                              and 22 U.S.C. 212a(b)(1). The proposed
                                                                                                      CFR 51.62(a)(1).                                      and 3(b)(2) of Executive Order 12988 to
                                              rules also err in rendering the passports
                                                                                                         Finally, the Department noticed a                  eliminate ambiguity, minimize
                                              currently held by ‘‘covered sex
                                                                                                      typographical error in a citation                     litigation, establish clear legal
                                              offenders’’ to be invalid immediately
                                              upon approval of the notice of                          included in the proposed rule. The                    standards, and reduce burden.
                                              revocation. That is because revocations                 citation relating to qualified interpreters           Small Business Regulatory Enforcement
                                              for a sexual tourism conviction (and for                (see § 51.71(d)) should be ‘‘28 U.S.C.                Fairness Act of 1996
                                              other reasons) are mandatory, while the                 1827.’’ It is corrected in this final rule.
                                              revocation of passports issued to                                                                               The Department does not believe this
                                                                                                      Regulatory Analysis and Notices                       rulemaking is a major rule under the
                                              ‘‘covered sex offenders’’ is not
                                              mandatory under 22 U.S.C. 212b or any                   Executive Orders 12866 and 13771                      criteria of 5 U.S.C. 804.
                                              other provision of law. In addition,                      The Department finds that this final                Regulatory Flexibility Act/Executive
                                              individuals convicted of sexual tourism                 rulemaking implements Congressional                   Order 13272: Small Business
                                              are categorically ineligible to hold                    intent as reflected in the Immigration
                                              passports during the period following                                                                            The Department certifies that this rule
                                                                                                      and Naturalization Act, and that the
                                              their conviction. In contrast, ‘‘covered                                                                      is not expected to have a significant
                                                                                                      benefits of the rulemaking outweigh any
                                              sex offenders’’ under 22 U.S.C. 212b are                                                                      impact on a substantial number of small
                                                                                                      costs to the public. The Office of
                                              allowed to carry their existing passports                                                                     entities under the criteria of the
                                                                                                      Information and Regulatory Affairs has
                                              that do not bear the identifier for an                                                                        Regulatory Flexibility Act, 5 U.S.C. 601
                                                                                                      designated this final rule as non-
                                              indeterminate period of time, until that                                                                      et seq., and Executive Order 13272,
                                                                                                      significant within the meaning of
                                              passport is revoke by the Department.                                                                         section 3(b), as the rule being amended
                                                                                                      Executive Order 12866. Consequently,
                                              Because ‘‘covered sex offenders’’ who                                                                         covers only individuals.
                                                                                                      no actions are required pursuant to
                                              currently possess passports are not in                  Executive Order 13771.                                List of Subjects
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                                              violation of the law, they should not be
                                              treated the same as individuals whose                   Consultations With Tribal Governments                 22 CFR Part 50
                                              current possession of a passport is                       The Department has determined that                    Citizenship and naturalization.
                                              illegal. The governing statute, 22 U.S.C.               this rulemaking will not have Tribal
                                                                                                                                                            22 CFR Part 51
                                              212b(b)(1), gives the Department the                    implications, will not impose
                                              discretion to avoid this inequitable and                substantial direct compliance costs on                  Administrative practice and
                                              unduly disruptive result by providing a                 Indian Tribal governments, and will not               procedure, Drug traffic control,


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                                              21874                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              Passports and visas, Reporting and                        (1) The Department approves the                        (c) The Department may cancel a
                                              recordkeeping requirements.                             revocation notification pursuant to                   Consular Report of Birth Abroad when:
                                                                                                      § 51.65(a); or                                           (1) The Consular Report of Birth
                                                Accordingly, for the reasons set forth                                                                      Abroad was illegally, fraudulently or
                                              in the preamble, 22 CFR parts 50 and 51                 *     *     *     *     *
                                                                                                        (8) The Department approves a                       erroneously obtained from the
                                              are amended as follows:                                                                                       Department, or was created through
                                                                                                      Certificate of Loss of Nationality for the
                                              PART 50—NATIONALITY                                     passport holder pursuant to § 50.40 of                illegality or fraud practiced upon the
                                              PROCEDURES                                              this chapter and 8 U.S.C. 1481.                       Department;
                                                                                                                                                               (2) The Consular Report of Birth
                                                                                                      ■ 6. Revise the heading of subpart E to
                                                                                                                                                            Abroad has been fraudulently altered or
                                              ■ 1. The authority citation for part 50                 read as follows:
                                                                                                                                                            misused; or
                                              continues to read as follows:                                                                                    (3) The Department has determined
                                                                                                      Subpart E—Denial, Revocation, and
                                                Authority: 22 U.S.C. 2651a; 8 U.S.C. 1104                                                                   that the bearer of the Consular Report of
                                                                                                      Restriction of Passports and
                                              and 1401 through 1504.                                                                                        Birth Abroad is not a U.S. national, or
                                                                                                      Cancellation of Consular Reports of
                                              ■ 2. Amend § 50.7 by revising paragraph                 Birth Abroad                                          the Department is on notice that the
                                              (d) to read as follows                                                                                        bearer’s certificate of citizenship has
                                                                                                      ■ 7. Amend § 51.60 by adding                          been cancelled.
                                              § 50.7 Consular Report of Birth Abroad of               paragraphs (h) and (i) to read as follows:               (d) The Department shall revoke a
                                              a Citizen of the United States of America.                                                                    U.S. passport in any case in which the
                                              *     *    *    *     *                                 § 51.60   Denial and restriction of passports.        Department is notified by the Attorney
                                                (d) A Consular Report of Birth Abroad                 *      *    *     *     *                             General, that during the covered period
                                              may be cancelled in accordance with                       (h) The Department may not issue a                  as defined by 22 U.S.C. 212a:
                                              applicable provisions in 22 CFR 51.60                   passport, except a limited validity                      (1) The applicant was convicted of a
                                              through 51.74.                                          passport for direct return to the United              violation of 18 U.S.C. 2423, and
                                                                                                      States or in instances where the                         (2) The individual used a passport or
                                              ■ 3. Amend § 50.11 by revising                          Department finds that emergency                       otherwise crossed an international
                                              paragraph (b) to read as follows:                       circumstances or humanitarian reasons                 border in committing the underlying
                                                                                                      exist, in any case in which the                       offense.
                                              § 50.11 Certificate of identity for travel to
                                                                                                      Department is notified by the Attorney                   (3) Notwithstanding paragraphs (d)(1)
                                              the United States to apply for admission.
                                                                                                      General that, during the covered period               and (2) of this section, the Department
                                              *      *    *     *     *                               as defined by 22 U.S.C. 212a:                         may issue a limited validity passport for
                                                (b) When a diplomatic or consular                       (1) The applicant was convicted of a                direct return to the United States.
                                              officer denies an application for a                     violation of 18 U.S.C. 2423, and                      ■ 9. Revise § 51.65 to read as follows:
                                              certificate of identity under this section,               (2) The individual used a passport or
                                              the applicant may submit a written                      passport card or otherwise crossed an                 § 51.65 Notification of denial, revocation or
                                              appeal to the Secretary through the U.S.                international border in committing the                cancellation of passports and Consular
                                                                                                                                                            Reports of Birth Abroad.
                                              embassy or consulate where the                          underlying offense.
                                              individual applied for the certificate of                 (i) In appropriate circumstances,                      (a) The Department will send notice
                                              identity, stating the pertinent facts, the              where an individual’s passport                        in writing to any person whose
                                              grounds upon which U.S. nationality is                  application is denied or passport                     application for issuance of a passport or
                                              claimed, and his or her reasons for                     revoked consistent with this part, the                Consular Report of Birth Abroad has
                                              considering that the denial was not                     Department may issue a limited validity               been denied, whose passport has been
                                              justified.                                              passport good only for direct return to               revoked, or whose Consular Report of
                                                                                                      the United States.                                    Birth Abroad has been cancelled. The
                                              PART 51—PASSPORTS                                                                                             notification will set forth the specific
                                                                                                      ■ 8. Revise § 51.62 to read as follows:
                                                                                                                                                            reasons for the denial, revocation or
                                              ■ 4. The authority citation for part 51 is              § 51.62 Revocation or limitation of                   cancellation and, if applicable, the
                                              revised to read as follows:                             passports and cancellation of Consular                procedures for review available under
                                                                                                      Reports of Birth Abroad.                              22 CFR 51.70 through 51.74.
                                                Authority: 8 U.S.C. 1504; 18 U.S.C. 1621,
                                              2423; 22 U.S.C. 211a, 212, 212a, 212b, 213,                (a) The Department may revoke or                      (b) An application for a passport or
                                              213n (Pub. L. 106–113 Div. B, Sec. 1000(a)(7)           limit a passport when:                                Consular Report of Birth Abroad will be
                                              [Div. A, Title II, Sec. 236], 113 Stat. 1536,              (1) The bearer of the passport may be              denied if an applicant fails to meet his
                                              1501A–430); 214, 214a, 217a, 218, 2651a,                denied a passport under 22 CFR 51.60                  or her burden of proof under the
                                              2671(d)(3), 2705, 2714, 2721, 3926; 26 U.S.C.           or 51.61 or any other applicable                      applicable regulations or otherwise does
                                              6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div.           provision contained in this part;                     not provide documentation sufficient to
                                              B, Title V of P.L. 103–317, 108 Stat. 1760];               (2) The passport was illegally,                    establish entitlement to a passport or a
                                              E.O. 11295, FR 10603; Pub. L. 114–119, 130              fraudulently or erroneously obtained                  Consular Report of Birth Abroad, or
                                              Stat. 15; Sec. 1 of P.L. 109–210, 120 Stat. 319;                                                              does not provide additional information
                                                                                                      from the Department; or was created
                                              Sec. 2 of P.L. 109–167, 119 Stat. 3578; Sec.
                                              5 of P.L. 109–472, 120 Stat. 3554; P.L. 108–            through illegality or fraud practiced                 as requested by the Department within
                                              447, Div. B, Title IV 118 Stat. 2896; P.L. 108–         upon the Department; or                               the time provided in the notification by
                                              458, 118 Stat. 3638, 3823.                                 (3) The passport has been                          the Department that additional
                                                                                                      fraudulently altered or misused.                      information is required. Thereafter, if an
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                                              ■ 5. Amend § 51.4 by revising paragraph                    (b) The Department may revoke a                    applicant wishes the Department to
                                              (g)(1) and adding paragraph (g)(8) to                   passport when the Department has                      adjudicate his or her claim of
                                              read as follows:                                        determined that the bearer of the                     entitlement to a passport or Consular
                                                                                                      passport is not a U.S. national, or the               Report of Birth Abroad, he or she must
                                              § 51.4   Validity of passports.
                                                                                                      Department is on notice that the bearer’s             submit a new application, supporting
                                              *       *    *       *      *                           certificate of citizenship or certificate of          documents, and photograph, along with
                                                  (g) * * *                                           naturalization has been cancelled.                    all applicable fees.


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                                                                    Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations                                         21875

                                                (c) The Department may, in its sole                   bearer is not a U.S. national or where a              the country in which the hearing is to
                                              discretion, administratively re-open a                  certificate of citizenship has been                   be held.
                                              previously filed passport or Consular                   cancelled);                                              (d) There is no right to subpoena
                                              Report of Birth Abroad application in                     (7) Section 51.62(d) (revocation of                 witnesses or to conduct discovery.
                                              order to issue a passport or Consular                   passports issued to certain convicted                 However, the person requesting the
                                              Report of Birth Abroad.                                 sex offenders);                                       hearing may testify in person, offer
                                              ■ 10. Revise § 51.66 to read as follows:                  (8) Section 51.64 (specially validated              evidence in his or her own behalf,
                                                                                                      passports);                                           present witnesses, and make arguments
                                              § 51.66 Surrender of passport and/or                      (9) Any other provision not listed at               at the hearing. The person requesting
                                              Consular Report of Birth Abroad.                                                                              the hearing is responsible for all costs
                                                                                                      § 51.70(a).
                                                 The bearer of a passport that is                       (c) If a timely request for a hearing is            associated with the presentation of his
                                              revoked or of a Consular Report of Birth                made by a person seeking a hearing in                 or her case, including the cost of
                                              Abroad that is cancelled must surrender                 accordance with these regulations, the                interpreters, who must be certified in
                                              it to the Department or its authorized                  Department will make reasonable efforts               accordance with standards established
                                              representative upon demand.                             to hold the hearing within 90 days of                 for federal courts under 28 U.S.C. 1827.
                                              ■ 11. Revise § 51.70 to read as follows:                the date the Department receives the                  The Department may present witnesses,
                                                                                                      request.                                              offer evidence, and make arguments in
                                              § 51.70 Request for hearing to review                                                                         its behalf. The Department is
                                              certain denials and revocations.                          (d) Within a reasonable period of time
                                                                                                      prior to the hearing, the Department will             responsible for all costs associated with
                                                 (a) A person whose passport has been                                                                       the presentation of its case.
                                                                                                      give the person requesting the hearing
                                              denied or revoked under 22 CFR                                                                                   (e) The hearing is informal and
                                                                                                      written notice of the date, time and
                                              51.60(b)(1) through (10), 51.60(c),                                                                           permissive. As such, the provisions of 5
                                                                                                      place of the hearing and copies of the
                                              51.60(d), 51.61(b), 51.62(a)(1), or                                                                           U.S.C. 554 et seq. do not apply to the
                                                                                                      evidence relied on in denying, revoking,
                                              51.62(a)(2), or whose Consular Report of                                                                      hearing. Formal rules of evidence also
                                                                                                      or cancelling the passport or Consular
                                              Birth Abroad is cancelled under                                                                               do not apply; however, the hearing
                                                                                                      Report of Birth Abroad.
                                              § 51.62(c)(1) or § 51.62(c)(2), may                                                                           officer may impose reasonable
                                              request a hearing to review the basis for                 (e) The person requesting the hearing
                                                                                                                                                            restrictions on relevancy, materiality,
                                              the denial, revocation, or cancellation,                may obtain one continuance, not to
                                                                                                                                                            and competency of evidence presented.
                                              provided that the Department receives                   exceed an additional 90 days, upon
                                                                                                                                                            Testimony will be under oath or by
                                              such a request, in writing, from such                   written request. The request for a
                                                                                                                                                            affirmation under penalty of perjury.
                                              person or his or her attorney within 60                 continuance must be received by the                   The hearing officer may not consider
                                              days of his or her receipt of the notice                Department as soon as practicable and                 any information that is not also made
                                              of the denial, revocation, or                           in no case less than five business days               available to the person requesting the
                                              cancellation. Failure to timely request a               prior to the scheduled hearing date. Any              hearing, the Department, and made a
                                              hearing means the denial, revocation, or                further continuances are within the sole              part of the record of the proceeding.
                                              cancellation is the Department’s final                  discretion of the Department.                            (f) If any witness is unable to appear,
                                              action.                                                 ■ 12. Revise § 51.71 to read as follows:              the hearing officer may, in his or her
                                                 (b) The provisions of §§ 51.70 through                                                                     discretion, accept an affidavit or sworn
                                                                                                      § 51.71   The hearing.
                                              51.74 do not apply to any action of the                                                                       deposition testimony of the witness, the
                                              Department denying, restricting,                          (a) The Department will name a                      cost for which will be the responsibility
                                              revoking, cancelling or invalidating a                  hearing officer, who will generally be a              of the requesting party, subject to such
                                              passport or Consular Report of Birth                    Department employee from the Bureau                   limits as the hearing officer deems
                                              Abroad, or in any other way adversely                   of Consular Affairs. The hearing officer              appropriate.
                                              affecting the ability of a person to                    will make only preliminary findings of                   (g) The person requesting the hearing
                                              receive or use a passport or Consular                   fact and submit recommendations based                 and the Department of State may submit
                                              Report of Birth Abroad, for reasons not                 on the record of the hearing, as defined              written briefs or argument prior to the
                                              set forth in § 51.70(a), including, as                  in 22 CFR 51.72, to the Deputy Assistant              hearing, but it is not required. The
                                              applicable, those listed at:                            Secretary for Passport Services, or his or            hearing officer will specify the date and
                                                 (1) Section 51.60(a) (instances where                her designee, in the Bureau of Consular               schedule for the parties to submit
                                              the Department may not issue a                          Affairs.                                              written briefs, should they choose to do
                                              passport, except for direct return to the                 (b) The hearing shall take place in                 so.
                                              United States);                                         Washington, DC or, if the person                         (h) The purpose of the hearing is to
                                                 (2) Section 51.60(f) (failure to provide             requesting the hearing is overseas, at the            provide the person requesting the
                                              a social security number, or                            appropriate U.S. diplomatic or consular               hearing an opportunity to challenge the
                                              purposefully providing an incorrect                     post. The person requesting the hearing               basis for the Department’s decision to
                                              number);                                                must appear in person or with or                      deny or revoke the passport, or cancel
                                                 (3) Section 51.60(g) (denial of                      through his or her attorney. Failure to               the Consular Report of Birth Abroad.
                                              passport cards to certain convicted sex                 appear at the scheduled hearing will                  The burden of production is on the
                                              offenders);                                             constitute an abandonment of the                      Department, and the Department shall
                                                 (4) Section 51.61(a) (denial of                      request for a hearing, and the                        provide the evidence it relied upon in
                                              passports to certain convicted drug                     Department’s revocation, cancellation or              revoking or denying the passport, or
                                              traffickers);                                           denial will be considered the                         cancelling the Consular Report of Birth
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                                                 (5) Section 51.62(b) (revocation of                  Department’s final action.                            Abroad, prior to the hearing. The
                                              passports for non-U.S. nationals or                       (c) Any attorney appearing at a                     burden of persuasion is on the person
                                              where a certificate of citizenship or                   hearing must be admitted to practice in               requesting the hearing, to prove by a
                                              naturalization has been cancelled);                     any state of the United States, the                   preponderance of the evidence that the
                                                 (6) Section 51.62(c)(3) (cancellation of             District of Columbia, or any territory or             Department improperly revoked the
                                              a Consular Report of Birth Abroad upon                  possession of the United States, or be                passport or denied the passport
                                              the Department’s determination that the                 admitted to practice before the courts of             application, or cancelled the Consular


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                                              21876                 Federal Register / Vol. 83, No. 92 / Friday, May 11, 2018 / Rules and Regulations

                                              Report of Birth Abroad, based on the                    DEPARTMENT OF HOMELAND                                RFA Regulatory Flexibility Act
                                              facts and law in effect at the time such                SECURITY                                              SNPRM Supplemental notice of proposed
                                              action was taken.                                                                                               rulemaking
                                                                                                      Coast Guard                                           TFR Temporary final rule
                                              ■   13. Revise § 51.72 to read as follows:                                                                    U.S.C. United States Code

                                              § 51.72 Transcript and record of the                    33 CFR Part 165                                       II. Background Information and
                                              hearing.                                                                                                      Regulatory History
                                                                                                      [Docket Number USCG–2017–0234]
                                                A qualified reporter, provided by the                                                                          Molten lava that enters the ocean is
                                                                                                      RIN 1625–AA00                                         potentially hazardous to anyone near it,
                                              Department, will make a complete
                                              verbatim transcript of the hearing. The                                                                       particularly when lava deltas collapse.
                                                                                                      Safety Zone; Pacific Ocean, Kilauea
                                              person requesting the hearing or his or                                                                       A lava delta is new land that forms
                                                                                                      Lava Flow Ocean Entry on Southeast
                                                                                                                                                            when lava accumulates above sea level,
                                              her attorney may review and purchase                    Side of Island of Hawaii, HI
                                                                                                                                                            and extends from the existing base of a
                                              a copy of the transcript directly from the
                                                                                                      AGENCY:    Coast Guard, DHS.                          sea cliff. Persons and vessels near active
                                              reporter. The hearing transcript and all
                                                                                                      ACTION:   Final rule.                                 lava flow ocean-entry sites face
                                              the information and documents received
                                                                                                                                                            potential hazards, including—
                                              by the hearing officer, whether or not                                                                           • Plumes of hot, corrosive seawater
                                                                                                      SUMMARY:   The Coast Guard is
                                              deemed relevant, will constitute the                    establishing a permanent safety zone                  laden with hydrochloric acid and fine
                                              record of the hearing. The hearing                      surrounding the area of entry of lava                 volcanic particles that can irritate the
                                              officer’s preliminary findings and                      from the Kilauea volcano into the                     skin, eyes, and lungs;
                                              recommendations are deliberative, and                   Pacific Ocean on the southeast side of                   • Explosions of debris and eruptions
                                              shall not be considered part of the                     the Island of Hawaii, HI. This action is              of scalding water from hot rock entering
                                              record unless adopted by the Deputy                     necessary to protect persons and vessels              the ocean;
                                              Assistant Secretary for Passport                        from the potential hazards associated                    • Sudden lava delta collapses; and
                                              Services, or his or her designee.                       with molten lava entering the ocean.                     • Waves associated with these
                                              ■   14. Revise § 51.73 to read as follows:              This regulation prohibits persons and                 explosions and collapses.
                                                                                                      vessels from being in the safety zone                    Lava began entering the ocean at the
                                              § 51.73   Privacy of hearing.                           during active lava flow reaching the                  Kamokuna lava delta on Kilauea
                                                                                                      Pacific Ocean on Kilauea volcano’s                    volcano’s south coast in July 2016. Lava
                                                Only the person requesting the                                                                              continued to enter the ocean at the
                                                                                                      southeast coast unless specifically
                                              hearing, his or her attorney, an                                                                              Kamokuna lava delta from July 2016 to
                                                                                                      authorized by the Captain of the Port
                                              interpreter, the hearing officer, the                   Honolulu or a designated representative.              mid-November 2017.
                                              reporter transcribing the hearing, and                                                                           Ocean safety concerns began on
                                                                                                      DATES: This rule is effective without
                                              employees of the Department concerned                                                                         December 31, 2016, when a large
                                                                                                      actual notice May 11, 2018. For
                                              with the presentation of the case may be                                                                      portion of the new lava delta collapsed
                                                                                                      purposes of enforcement, actual notice
                                              present at the hearing. Witnesses may be                                                                      into the ocean, producing waves and
                                                                                                      will be used if active lava associated
                                              present only while actually giving                                                                            explosions of debris at 19°19′12″ N,
                                                                                                      with the Kilauea activity enters into the
                                              testimony or as otherwise directed by                                                                         155°02′24″ W near the Kamokuna entry
                                                                                                      Pacific Ocean prior to May 11, 2018.
                                              the hearing officer.                                                                                          point. Following this collapse, portions
                                                                                                      ADDRESSES: To view documents
                                                                                                                                                            of the adjacent sea cliff continued to
                                              ■   15. Revise § 51.74 to read as follows:              mentioned in this preamble as being                   collapse into the Pacific Ocean,
                                                                                                      available in the docket, go to http://                producing localized waves and showers
                                              § 51.74   Final decision.
                                                                                                      www.regulations.gov, type USCG–2017–                  of debris.
                                                After reviewing the record of the                     0234 in the ‘‘SEARCH’’ box and click                     In March 2017, a new delta began to
                                              hearing and the preliminary findings of                 ‘‘SEARCH.’’ Click on Open Docket                      form at the Kamokuna ocean-entry
                                              fact and recommendations of the                         Folder on the line associated with this               point, and from March 2017 to July
                                              hearing officer, and considering legal                  rule.                                                 2017, several collapses of the lava bench
                                              and policy considerations he or she                     FOR FURTHER INFORMATION CONTACT: If                   were observed by National Park Service
                                              deems relevant, the Deputy Assistant                    you have questions on this rule, call or              and Hawaiian Volcano Observatory
                                              Secretary for Passport Services, or his or              email Lieutenant Commander John                       (HVO) staff. Beginning in the middle of
                                              her designee, will decide whether to                    Bannon, Waterways Management                          November 2017, the lava flow slowed
                                              uphold the denial or revocation of the                  Division, Coast Guard; telephone 808–                 down and subsequently stopped
                                              passport or cancellation of the Consular                541–4359, email John.E.Bannon@                        entering the ocean, and as of March
                                              Report of Birth Abroad. The Department                  uscg.mil.                                             2018, the lava flow remains inactive.
                                              will promptly notify the person                         SUPPLEMENTARY INFORMATION:                               Though the Kamokuna lava delta is
                                              requesting the hearing of the decision in                                                                     not currently active, this region and
                                              writing. If the decision is to uphold the               I. Table of Abbreviations                             associated coastline remains hazardous
                                              denial, revocation, or cancellation, the                BLS Bureau of Labor Statistics                        both to visitors on land and to the
                                              notice will contain the reason(s) for the               COTP Captain of the Port                              boating public due to active seismic and
                                              decision. The decision is final and is not              DHS Department of Homeland Security                   lava activity associated with the Kilauea
                                              subject to further administrative review.               FR Federal Register                                   lava flow. According to the HVO, which
sradovich on DSK3GMQ082PROD with RULES




                                                                                                      FRFA Final regulatory flexibility analysis            is part of the U.S. Geological Survey and
                                                Dated: May 3, 2018.                                   HVO Hawaii Volcano Observatory                        responsible for monitoring volcanoes
                                              Carl C. Risch,                                          IRFA Initial regulatory flexibility analysis
                                                                                                      NAICS North American Industry
                                                                                                                                                            and earthquakes in Hawaii, the lava
                                              Assistant Secretary of State for Consular                                                                     delta remains unstable and resumed
                                                                                                        Classification System
                                              Affairs, Department of State.                                                                                 ocean lava flow is realistic. Hazards to
                                                                                                      NPRM Notice of proposed rulemaking
                                              [FR Doc. 2018–09995 Filed 5–10–18; 8:45 am]             OMB Office of Management and Budget                   the public include hot gases, lava,
                                              BILLING CODE 4710–06–P                                  § Section symbol                                      scalding water, unstable vertical sea


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Document Created: 2018-11-02 09:49:41
Document Modified: 2018-11-02 09:49:41
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective on May 11, 2018.
ContactAnita Mody, Office of Legal Affairs, Passport Services, (202) 485-6500, [email protected] Hearing- or speech-impaired persons may use the Telecommunications Devices for the Deaf (TDD) by contacting the Federal Information Relay Service at 1- 800-877-8339.
FR Citation83 FR 21872 
RIN Number1400-AD54
CFR Citation22 CFR 50
22 CFR 51
CFR AssociatedCitizenship and Naturalization; Administrative Practice and Procedure; Drug Traffic Control; Passports and Visas and Reporting and Recordkeeping Requirements

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