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[Federal Register: June 4, 2001 (Volume 66, Number 107)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF STATE
Bureau of Consular Affairs
22 CFR Part 51
[Public Notice 3672]
Passport Procedures--Amendment to Requirements for Executing a
Passport Application on Behalf of a Minor
AGENCY: Bureau of Consular Affairs, State Department.
ACTION: Final rule.
SUMMARY: This rule finalizes the proposed rule published on October 10,
2000. The rule brings passport regulations into conformity with current
practice and implements the requirements of Section 236 of the Admiral
James W. Nance and Meg Donovan Foreign Relations Authorization Act.
That Section requires that both parents execute a passport application
on behalf of a minor under age 14; or, if only one parent executes the
application, such parent must establish his or her custodial status or
the other parent's consent. It also provides for exceptions to this
requirement in exigent circumstances, such as those involving the
health or welfare of the child, or when the Secretary of State
determines that issuance of a passport is warranted by special family
EFFECTIVE DATE: July 2, 2001.
FOR FURTHER INFORMATION CONTACT: John Hotchner, Director, Office of
Passport Policy, Planning and Advisory Services, 2401 E. Street, NW.,
Room 917, Washington, DC 20522-0907.
SUPPLEMENTARY INFORMATION: The Department published a proposed rule,
Public Notice 3428 at 65 FR 60132, Oct. 10, 2000, with a request for
comments, amending numerous sections of Part 51 of Title 22 of the Code
of Federal Regulations. The rule was proposed primarily to implement
provisions of Section 236 of the Admiral James W. Nance and Meg Donovan
Foreign Relations Authorization Act, Public Law 106-113, 113 Stat.
1501A-420 (22 U.S.C. 213n), although it also makes procedural changes
to harmonize other parts of the regulations with the two-parent consent
requirement. The rule was discussed in detail in Public Notice 3428, as
were the Department's reasons for the other changes to the regulations.
The Department is now promulgating a final rule with minor changes from
the proposed rule (for example, the fact that the rule applies to both
renewal and first time passport applications is clarified) and no
Analysis of Comments
The proposed rule was published for comments on October 10, 2000 at
65 FR 60132. The comment period closed November 6, 2000, but the
Department continued to accept comments (including by electronic mail)
until November 28, 2000, to accommodate delays in publication and mail
The Department received forty-nine (49) comments regarding the
proposed change in the procedures for applying for passports on behalf
of minors under age 14. Most were received via e-mail from individuals
living abroad. In addition to expressing an opinion, most of the
comments also contained specific questions about implementation. The
majority--26--were opposed to the concept of requiring both parents to
apply for a passport on behalf of a minor under age 14, but offered few
specific comments on the draft regulation. Four commentators were in
favor of the requirement; one saw both sides of the issue; and 7 just
asked questions but made no comment.
The majority of the comments expressed concern about the
inconvenience to families who are not involved in a child custody
dispute and for whom it might be difficult to have both parents apply
for a passport on behalf of a minor under age 14. For example, in some
cases in which a family lives far from a U.S. embassy, passport agency,
or acceptance facility, it may cause hardship to the entire family to
require both parents to travel to execute the application.
The regulation expressly provides for this circumstance by allowing
the applying parent to present a simple written statement from the non-
applying parent giving consent to the issuance of the passport. The
written statement will be presented by the applying parent under
penalty of perjury and will become a part of the minor's permanent
Generally, the written statement consenting to the issuance of the
passport will be accepted without further questions, but additional
evidence may be required if the adjudicating officer has reason to
suspect that the statement is not true. If the non-applying parent
neither signs the application nor provides a written statement
consenting to the issuance of a passport (for whatever reason), the
applying parent may submit his or her own written statement, made under
penalty of perjury, explaining why the other parent did not or could
not participate in the child's passport application. The adjudicating
officer will then consider whether this explanation falls within the
parameters of the special family circumstances exception. If the
determination is made that it does not fall under that exception, the
passport will be denied. We anticipate that there will be very few
instances where passports will be denied under these circumstances.
Another concern was raised by single parents who are no longer in
contact with the minor's other parent.
The regulation provides that parents need only present documentary
evidence of sole custody, i.e., a birth certificate or adoption decree
only one parent, evidence of the death of a parent, a decree granting
sole custody, or a court order terminating the other parent's parental
rights. The Department will consider other documentary evidence as
warranted by the circumstances. If no documentary evidence is
available, the applying parent may submit a written statement under
penalty of perjury setting out the circumstances that prevent him or
her from presenting the requested documentation.
Some comments referred to the ability of non-U.S. citizens to
obtain a U.S. passport for their U.S. citizen child or to inhibit the
issuance of their child's passport when applied for by the U.S. citizen
The fact that a parent is not a U.S. citizen does not limit his or
her ability to obtain a U.S. passport on behalf of his or her minor
U.S. citizen child. Similarly, a non-U.S. citizen parent may request
that no U.S. passport be issued to a U.S. citizen minor if that parent
has legal custody of the child. The new regulation does not change the
rights of parents in this respect.
The Department has a long-standing program that provides for
parental notification and the denial of a passport to a minor of any
age who is the subject of a child custody dispute. The Children's
Passport Issuance Alert Program enables the Department of State's
Office of Children's Issues to notify a parent or legal guardian, when
requested, before issuing a U.S. passport for his or her child. At the
request of a custodial or non-custodial parent, legal guardian, legal
representative, or a court of competent jurisdiction, the Department
will enter the child's name into its passport name check clearance
system. This allows the Department to alert the requesting parent if a
passport application is received for the child. To deny the passport
application, the Department must have on file a written request for
denial from a parent, legal guardian, or an officer of the court, and a
complete copy of a temporary or permanent court order that provides
for: (1) Sole legal custody to the requesting parent; (2) joint custody
to both parents (which the Department treats as inherently requiring
both parents to consent to passport issuance); or (3) a restriction on
the child's travel or a requirement of that both parents or the
appropriate court give permission to travel. The Department strongly
encourages parents who fear that their child may be abducted to
continue to make use of this program.
The public comments expressed concern that some U.S. citizen
children are dual citizens and may be entitled to a foreign passport.
A U.S. citizen child may have another nationality because the child
was born abroad, because one of the child's parents acquired a foreign
nationality at birth, or because one of the child's parents acquired a
second nationality through naturalization in another country.
Acquisition of foreign nationality may occur in these cases without
regard to the wishes of the U.S. citizen parent of the child.
Similarly, the child of foreign nationals may acquire U.S. citizenship
regardless of the child's parent's wishes (e.g., if the child is born
in the United States). The inability to obtain a U.S. passport will not
necessarily prevent a dual national child from obtaining and traveling
on a foreign passport. While some foreign countries will give effect to
U.S. custody orders, they are generally free to issue passports to
their nationals, including minor children.
The Comments Also Contained Specific Questions That Are Addressed Below
Will currently valid passports held by minors under age 14 continue
to be valid after the two-parent application requirement goes into
Yes, currently valid passports will continue to be valid until
their expiration date, generally five years from the date of issuance.
However, when those passports expire, the two-parent consent
requirement will apply for new or renewal passport requests if the
child is still under age 14.
Once a passport is actually issued, will there need to be two
signatures in the passport in order for it to be valid?
No. Only one parent need sign the passport.
Can the rule apply only to renewals and not first time applicants?
No. The statute specifically applies to all passports issued for
minors under age 14.
Do the new statute and its implementing regulation require both
parents to travel with their minor?
No. The statute and regulation apply only to the application for
the passport, not to the actual use of the passport.
Will U.S. citizen children who are unable to obtain a U.S. passport
due to lack of the second parent's permission be granted visas in their
foreign passports to enable travel to the United States?
No. U.S. law specifically prohibits the issuance of a U.S. visa to
a U.S. citizen or national.
Will additional fees be charged for the two signatures?
No, the same passport fee for minors remains in effect.
What is considered an exigent circumstance?
Some examples of exigent circumstances would include, but not be
limited to: (1) A minor who needs to travel due to a serious illness of
a person in the minor's immediate family; (2) a minor who must travel
to receive emergency medical treatment; (3) a minor who has his or her
passport lost or stolen while traveling abroad accompanied by only one
parent, or traveling unaccompanied by a parent or parents with a
school, church or other group, and who needs to travel immediately to
another overseas destination.
What is considered a special family circumstance?
Examples of special family circumstances include, but are not
limited to: (1) A situation in which the non-applying parent has
abandoned the family, and his or her whereabouts are unknown; or (2) a
situation in which the non-applying parent is unable to give written
consent due to serious health problems. Instances involving
inconvenience to the non-applying parent will not be considered a
special family circumstance, however. A non-applying parent who cannot
personally appear at an acceptance facility, passport agency, or U.S.
embassy, consulate or consular agency abroad to sign the minor's
application may send the signed consent statement by overnight delivery
if the minor's travel is urgent, or fax it to the applying parent or
passport issuing office if the minor's travel is imminent.
When both parents have abandoned the minor or are deceased and
there has been no formal or legal determination of custody or
guardianship (such as when a grandparent, aunt, uncle, brother or
sister has assumed responsibility), documentation of legal custody or
guardianship must be obtained and submitted. If exigent circumstances
apply to a child in this situation, a passport would be issued without
such documentation if failure to do so would cause grave danger to the
child. Examples would include medical evacuation of a child from a
foreign country to the United States or an emergency evacuation of U.S.
citizens from a foreign country during a period of civil unrest.
In crafting the regulations to implement the statute uniformly and
fairly, the Department sought to implement the statute in a way that
will: (1) Use the passport application process as a vehicle for
deterring parental child abduction; (2) minimize any
unnecessary inconvenience to parents in the majority of cases that do
not involve parental abduction issues; and (3) fulfill the Department's
responsibilities for passport issuance and the protection of U.S.
citizens abroad. We feel that the final regulation meets those goals. A
central feature of the regulation is that it puts the full burden of
responsibility for the bona fides of the documentation submitted and
the truthfulness of representations made therein on the applying parent
or legal guardian, who will be subject to criminal penalties for making
false statements to procure a passport. Although not obligated to do so
in any particular case, the Department reserves its right to
investigate or verify the truthfulness of assertions made during the
application process, or to confirm the validity of documents presented
in support of the application.
The effective date of this regulation is July 2, 2001. This date
will give the Department time to redesign, obtain required approval
under the Paperwork Reduction Act for, and print a new passport
application form with signature blocks for both parents' signatures. It
will also avoid introducing a new requirement into the application
process during the peak pre-summer travel period. Finally, it will give
the Department sufficient time to disseminate information regarding the
Administrative Procedure Act
The Department is publishing this rule as a final rule after it was
published as a proposed rule on October 10, 2000 (see SUPPLEMENTARY
Regulatory Flexibility Act
The Department of State, in accordance with the Regulatory
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by
approving it, certifies that this rule will not have a significant
economic impact on a substantial number of small entities.
Unfunded Mandates Act of 1995
This rule will not result in the expenditure by State, local and
tribal governments, in the aggregate, or by the private sector, of $1
million or more in any year and it will not significantly or uniquely
affect small governments. Therefore, no actions were deemed necessary
under the provisions of the Unfunded Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Act of 1996. This rule will not
result in an annual effect on the economy of $100 million or more; a
major increase in costs or prices; or significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based companies to compete with foreign
based companies in domestic and import markets.
Executive Order 12866
The Department of State does not consider this rule to be a
``significant regulatory action'' under Executive Order 12866, section
3(f), Regulatory Planning and Review.
Executive Order 13132
This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this rule does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement.
Paperwork Reduction Act
The reporting or recordkeeping action required from the public
under the rule requires the approval of the Office of Management and
Budget under the Paperwork Reduction Act. A form for documenting the
written consent of a parent not applying or special circumstances why
such parent's written consent cannot be obtained is being forwarded to
OMB as required.
List of Subjects in 22 CFR Part 51
Administrative practice and procedure, Passports and visas,
Reporting and recordkeeping requirements.
Accordingly, for the reasons set forth in the preamble, 22 CFR part
51 is amended as follows:
1. The authority citation for part 51 is revised to read as
Authority: 22 U.S.C. 211a, 213, 2651a, 2671(d)(3), 2714 and
3926; 31 U.S.C. 9701; E.O. 11295, 3 CFR, 1966-1970 Comp., p. 570;
sec. 236, Pub. L.106-113, 113 Stat. 1501A-430; 18 U.S.C. 1621(a)(2).
2. In Sec. 51.1, redesignate paragraphs (g) and (h) as paragraphs
(h) and (i), respectively, and add a new paragraph (g) to read as
Sec. 51.1 Definitions.
* * * * *
(g) Passport Application means the application form for a United
States passport, filled in, subscribed and executed as prescribed by
the Secretary pursuant to 22 U.S.C. 213, and all documents, photos and
statements submitted with the form or thereafter in support of the
application. A person providing false information as part of a passport
application, whether contemporaneously with the application form or at
any other time, is subject to prosecution for passport fraud or perjury
under all applicable criminal statutes, including but not limited to 18
U.S.C. 1001, 1541, et seq. and 1621.
* * * * *
3. Revise Sec. 51.21(d)(4)(ii) to read as follows:
Sec. 51.21 Execution of passport application.
* * * * *
(d) * * *
(4) * * *
(ii) Mail applications abroad on behalf of minors under the age of
14 must comply with the requirements of Sec. 51.27;
* * * * *
4. In Sec. 51.27, revise paragraph (b) and paragraph (d)(l)(i)
introductory text to read as follows:
Sec. 51.27 Minors.
* * * * *
(b) Execution of the application for minors. (1) Minors 14 years of
age and above. A minor aged 14 and above is required to execute an
application on his or her own behalf unless, in the judgment of the
person before whom the application is executed, it is not desirable for
the minor to execute his or her own application. In such a case, it
must be executed on behalf of the minor aged 14 and above by a parent
or guardian of the minor or by a person in loco parentis.
(2) Minors under the age of 14. (i) Except as specifically provided
in this section, both parents or each of the child's legal guardians,
if any, whether applying for a passport for the first time or for a
renewal, must execute the application on behalf of a minor under age 14
under penalty of perjury, and provide documentary evidence of parentage
showing the minor's name, date and place of birth, and the names of the
parent or parents.
(ii) A passport application may be executed on behalf of a minor
14 by just one parent or legal guardian if such person provides, under
penalty of perjury:
(A) Documentary evidence that such person is the sole parent or has
sole custody of the child; or
(B) A written statement of consent from the non-applying parent or
guardian, if applicable, to the issuance of the passport.
(iii) An individual may apply in loco parentis on behalf of a minor
under age 14 by submitting a notarized written statement or a notarized
affidavit from both parents specifically authorizing the application.
However, if only one parent provides the notarized written statement or
notarized affidavit, documentary evidence that such parent has sole
custody of the child must be presented.
(iv) Documentary evidence in support of an application executed on
behalf of a minor under age 14 by one parent or person in loco parentis
under paragraphs (b)(2)(ii) and (iii) of this section may include, but
is not limited to, the following:
(A) A birth certificate providing the minor's name, date and place
of birth and the name of the sole parent;
(B) A Consular Report of Birth Abroad of a Citizen of the United
States of America (FS-240) or a Certification of Report of Birth of a
United States Citizen (DS-1350) providing the minor's name, date and
place of birth and the name of the sole parent;
(C) An adoption decree showing only one adopting parent;
(D) An order of a court of competent jurisdiction granting sole
custody to the applying parent or legal guardian and containing no
travel restrictions inconsistent with issuance of the passport;
(E) A judicial declaration of incompetence of the non-applying
(F) An order of a court of competent jurisdiction specifically
permitting the applying parent's or guardian's travel with the child;
(G) A death certificate for the non-applying parent; or
(H) A copy of a Commitment Order or comparable document for an
(v) In instances when a parent submits a custody decree invoking
the provisions of paragraph (d)(1) of this section, the judicial
limitations on the minor's ability to travel contained in the custody
decree will be given effect.
(vi) The requirements of paragraphs (b)(2)(i), (ii) and (iii) of
this section may be waived in cases of exigent or special family
circumstances, as determined by a Department official designated under
paragraph (b)(2)(vi)(E) of this section.
(A) Exigent circumstances are defined as time-sensitive
circumstances in which the inability of the minor to obtain a passport
would jeopardize the health and safety or welfare of the minor or would
result in the child being separated from the rest of his or her
(B) ``Time-sensitive'' generally means that there is not enough
time before the minor's emergency travel to obtain either the required
consent of both parents/guardians or documentation reflecting a sole
parent's/guardian's custody rights.
(C) Special family circumstances are circumstances in which the
minor's family situation makes it impossible for one or both of the
parents to execute the passport application.
(D) A parent applying for a passport for a child under age 14 under
this paragraph (b)(2)(vi) must submit with the application a written
statement subscribed under penalty of perjury describing the exigent or
special family circumstances the parent believes should be taken into
consideration in applying an exception.
(E) Determinations under this paragraph (b)(2)(vi) may be made by a
senior passport adjudicator or the Deputy Assistant Secretary for
Passport Services for an application filed within the United States, or
a consular officer or the Deputy Assistant Secretary for Overseas
Citizens Services for an application filed abroad.
(vii) Nothing contained in this section shall prohibit any
Department official adjudicating a passport application on behalf of a
minor from requiring an applicant to submit other documentary evidence
deemed necessary to establish the applying adult's entitlement to
obtain a passport on behalf of a minor under the age of 14 in
accordance with the provisions of this regulation.
* * * * *
(d) * * *
(1)(i) When there is a dispute concerning the custody of a minor
under age 18, a passport may be denied if the Department has on file,
or is provided in the course of a passport application executed on
behalf of a minor, a copy of a court order from a court of competent
jurisdiction in the United States or abroad which:
* * * * *
5. Revise Sec. 51.40 to read as follows:
Sec. 51.40 Burden of proof.
The applicant has the burden of proving that he or she is a
national of the United States.
6. Revise Sec. 51.41 to read as follows:
Sec. 51.41 Documentary evidence.
Every application shall be accompanied by evidence of the U.S.
nationality of the applicant.
Dated: May 10, 2001.
For the Secretary of State.
Mary A. Ryan,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 01-13845 Filed 6-1-01; 8:45 am]
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