Passports: Statement of Consent

Passports: Form DS-3053 Statement of Consent

Supplementary Information

The Department published a proposed rule with a request for comments, Public Notice 11299 at 87 FR 63739, October 20, 2022 (the NPRM), RIN 1400-AF10, to amend 22 CFR 51.28(a)(3)(i), (a)(4)(i) and (ii) to allow the non-applying parent or legal guardian to sign a statement of consent before a passport specialist at one of the public passport counters located within the United States as an alternative to signing it before a notary public. This counter service will be offered free of charge. The Department intends to issue policy to authorize signing of the consent form in front of a passport specialist at a passport agency/center initially to those cases in which there is a passport application pending or other emergency circumstance, as appropriate. As Department systems and procedures evolve, it may be possible to expand use of this regulation in the future.

When applying for a U.S. passport on behalf of a minor under the age of 16, the minor's parents or legal guardians must both execute the passport application, unless the applying parent or legal guardian can demonstrate sole authority to obtain the passport. If one of the parents or legal guardians does not execute the passport application, that non-applying parent or legal guardian must submit an original notarized statement/affidavit consenting to the issuance of a passport for the minor, along with a photocopy of their identification. Currently, if the non-applying parent or legal guardian appears at a passport agency/center counter to complete the statement of consent, they must be turned away and sent to a notary public. Feedback from parents and legal guardians indicates that obtaining and mailing the notarized document can be a difficult requirement to meet and adds more time and expense to the application process.

This amendment will allow the non-applying parent or legal guardian to execute an original DS-3053 consent form in front of a passport specialist when authorized by Department policy as an alternative to signing to before a notary public, enabling them to immediately correct any deficiencies in any previously-submitted consent forms.

This change in procedure can help in emergencies and/or urgent travel situations when it is not always possible for the non-applying parent or legal guardian to deliver the original consent form to the Department. Currently, in these cases, the Department may accept a photocopy of the notarized consent form and issue a passport with limited validity to enable the minor applicant to complete their urgent or emergency travel. While limited validity passports may often be replaced with full validity passports at no further cost, the process is burdensome for both the Department and the applicant, as it requires the applicant to complete another application form and submit photographs, the limited passport, and an original notarized consent form within one year from the date that the limited passport was issued. Under the new procedures, when a parent or legal guardian signs the consent form in front of a passport specialist, the Department will have direct access to the original completed form and can issue a full validity passport immediately.

In the NPRM, the Department further proposed to amend § 51.28(a)(4)(ii) to clarify that when one parent authorizes a person to apply in loco parentis on behalf of a minor, they must demonstrate that they have sole legal authority to execute the passport application on behalf of that minor or that exigent or special family circumstances exist.

The Department also proposed to amend 22 CFR 51.28(a)(3)(ii) by removing from the list of acceptable documentary evidence of sole authority/custody a Consular Report of Birth Abroad (CRBA) listing only the applying parent because a CRBA is a citizenship document and not by itself evidence of sole authority/custody. This piece of the NPRM was already finalized in a separate final rule on 06/23/2023, Public Notice 12094, 88 FR 41024. The Department is now promulgating a final rule with no substantive change from the NPRM with respect to the DS-3053 Statement of Consent.

Analysis of Comments: The Department provided 60 days for comment on the NPRM. The comment period closed December 19, 2022. The Department received two responsive comments, neither of which were opposed to this amendment. One commenter questioned why obtaining parental consent presents any difficulty to applicants at all and stated that the process is necessary to protect the minor child. This update to the regulation will provide an additional avenue for a minor applicant's parents or legal guardians to resolve consent issues, maintain the integrity of the passport issuance process, and continue to protect the welfare of minors.

Another commenter expressed concern that the proposed rule is too limited in scope to have any meaningful impact. The Department believes it will be greatly beneficial to the subset of applicants that utilize it. The non-applying parent or legal guardian will be easily able to resolve any issues with the original consent form by completing and signing a new form directly in front of a passport specialist. This practice will decrease the number of limited validity passports that are issued based on photocopies of notarized consent forms and will also expedite processing for these applications. The commentor additionally noted that this free alternative may have an adverse impact on the income of notaries public. The Department notes, first, that the issue of notary public income is not a reason to keep a requirement for passport applicants if it serves no useful purpose. Second, this rule will primarily benefit non-applying parents or legal guardians whose children already have pending applications, and in many of these cases, a notarized consent form was already submitted that had issues or deficiencies that need to be resolved. This rule provides a more efficient, cost-effective option for parents or legal guardians to correct issues with their previously submitted notarized consent document.

Lastly, the commenter recommended allowing acceptance agents at passport acceptance facilities to sign the form DS-3053. The Department is not open to expanding this option to acceptance facilities at this time. The burden on a non-applying parent is greatly reduced by allowing them to sign a consent form directly with a passport specialist at a public counter operated by the Department of State. Consent documents for pending passport applications will be directly transmitted to the adjudicating passport agency/center, which will improve security and efficiency in the passport issuance process. Direct document transmission would not be available through acceptance facilities not operated by the Department, and with the wide access and availability of notaries public, the Department does not believe there is added value in including acceptance facilities.

The Department received no comments regarding the information collection for the DS-3053 changes under the Paperwork Reduction Act.

Regulatory Findings

Administrative Procedure Act

The Department of State published this rulemaking as a proposed rule and provided 60 days for public comment.

Regulatory Flexibility Act

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. This gives greater flexibility to the parents and legal guardians of minor children applying for U.S. passports. Only individuals, and no small entities, apply for passports.

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 $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

This rule is not a major rule as defined by the Congressional Review Act. This rule does 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, as Amended by Executive Order 14094

The Department has reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in Executive Orders 12866 and 14094. The Department finds that the cost of this rulemaking to the public is expected to be minimal, and in fact provides a potential benefit to non-applying parents who may now sign a consent statement before a passport specialist free of charge (while retaining the option of signing before a notary). The Office of Information and Regulatory Affairs has designated this rule not significant under Executive Order 12866.

Executive Order 13563-Improving Regulation and Regulatory Review

The Department of State has considered this rule in light of Executive Order 13563 and affirms that this regulation is consistent with the guidance therein.

Executive Orders 12372 and 13132-Federalism

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

Executive Order 13175-Consultation With Tribal Governments

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of E.O. 13175 do not apply to this rule.

Paperwork Reduction Act

The information collection contained in this rule is pursuant to the Paperwork Reduction Act, 44 U.S.C. Chapter 35, and relates to OMB Control Number 1405-0129.

Department of State Form DS-3053, which is used to obtain the written consent from a parent or legal guardian of a minor passport applicant when that parent cannot be present at the time the application is executed, will be revised to be consistent with this rulemaking, to allow the non-applying parent or legal guardian to sign a statement of consent before a notary public or a passport specialist at one of the public passport agency/center counters located within the United States as an alternative to requiring a notarized statement, when an application is pending at a passport agency/center.

Accordingly, for the reasons set forth in the preamble, 22 CFR part 51 is amended as follows:

Part 51 Passports