E6-13300. Passport Procedures-Amendment to Passport Regulations

AGENCY:

Department of State.

ACTION:

Interim rule.

SUMMARY:

This interim rule implements the requirements of the Passport Services Enhancement Act of 2005, amending the Passport Act of June 4, 1920, to authorize the Secretary of State to establish and collect a surcharge to cover the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (IRTPA). The Passport Services Enhancement Act authorizes the Department of State to assess a surcharge on applicable fees for the filing of each passport application to offset its additional costs. The surcharge will be collected from within the application fee and will not increase the overall current cost of the passport.

DATES:

Effective date: This interim rule is effective on August 15, 2006.

Comment period: The Department of State will accept written comments from interested persons up to September 13, 2006.

ADDRESSES:

Interested parties may submit comments at any time by any of the following methods:

• E-mail: [e-mail]. You must include the Regulatory Identification Number (RIN) in the subject line of your message.
• Mail: (Paper, disk, or CD-ROM submissions): An original and three copies of comments should be sent to: Gail Neelon, Office of Passport Policy, Planning and Advisory Services, 2100 Pennsylvania Ave., NW., 3rd Floor, Washington, DC 20037. 202-663-2427.
• Fax: [phone]. You must include the Regulatory Identification Number (RIN) in the subject line of your message.

FOR FURTHER INFORMATION CONTACT:

For passport issuance policy: Gail Neelon, Office of Passport Policy, Planning and Advisory Services, 2100 Pennsylvania Ave., NW., 3rd Floor, Washington, DC 20037. [phone]. E-mail: [e-mail]. For consular fee setting policy: Timothy Scherer, Office of the Executive Director, Bureau of Consular Affairs, U.S. Department of State, Suite H1004, 2401 E St., NW., Washington, DC 20520, or by e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Section 1101(a)(30) of Title 8, United States Code (U.S.C.), defines a passport as any travel document issued by a competent authority showing the bearer's origin, identity and nationality, which is valid for the admission of the bearer into a foreign country. The Secretary of State has sole authority to grant and issue passports, pursuant to 22 U.S.C. 211a. Before a passport is issued to any person by or under authority of the United States such person shall subscribe to and submit a written application, as required by 22 U.S.C. 213. During its period of validity, a passport (when issued for the maximum period authorized by law) is a document establishing proof of United States citizenship, pursuant to 22 U.S.C. 2705.

Section 7209 of the IRTPA seeks to enhance border security within the Western Hemisphere by requiring documentation for travel by U.S. citizens that denotes citizenship and identity. It requires that the Secretary of Homeland Security, in consultation with the Secretary of State, develop and implement a plan by January 1, 2008 to require all travelers, U.S. citizens and non-U.S. citizens alike, to present “a passport or other document, or combination of documents, deemed by the Secretary of Homeland Security to be sufficient to denote identity and citizenship” when entering the United States. This is a change from prior travel requirements and will affect United States citizens entering the United States who do not currently possess valid passports.

The Passport Services Enhancement Act (Pub. L. 109-167, January 10, 2006, 119 STAT. 3578) authorizes the Secretary of State to establish, collect, and retain a surcharge to cover the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Pub. L. 108-458, 8 U.S.C. 1185). At present, the entire passport application fee is deposited to the Department of the Treasury.

In March 2006, the Department of State commissioned an independent cost of service survey to examine the resource implications of the increased demand for passports under the Western Hemisphere Travel Initiative (WHTI), the administration's proposal to address the requirements of the IRTPA, and to determine the appropriate amount of the surcharge. That survey determined that uncompensated WHTI-related costs borne by the Department of State will reach $289 million during the period FY 2006-FY 2008. It also determined that a six-dollar surcharge retained by the Department of State would enable it to meet the costs of increased passport demand. Pursuant to the authority granted to the Secretary of State under the Passport Services Enhancement Act of 2005, this rule will allow the Department of State to establish, collect, and retain a six-dollar surcharge on applicable fees for the filing of each application for a passport, in order to address the resource implications of section 7209(b) of the IRTPA. That surcharge will be imbedded in the passport application fee and will be deposited as an offsetting collection to the appropriate Department of State appropriation account. The non-surcharge portion of the passport application fee will be remitted to the general fund of the Treasury.

However, the Passport Services Enhancement Act stipulates that the Department of State must ensure “to the extent practicable” that the total cost of the passport during fiscal years 2006 and 2007 not exceed the cost as of December 1, 2005. Therefore, the Department of State plans to reduce the total fee for a passport application based on the cost of service study commissioned in March 2006. This fee reduction will permit the Department of State to ensure in a timely manner that the cost of a passport application, after implementation of the surcharge authorized by this rule, will not exceed the cost of a passport application as of December 1, 2005. The net impact of these two actions is no change to the fee charged for a passport application.

The Department of State considers the enactment of this rule as a matter of urgency to help provide the funds to meet the demand created by the legislation for universal international traveler nationality and identity documentation. The Department is in the process of increasing its overall production capacity, improving efficiency of production and adjudication processes, and developing a lower cost card format passport for use at land border crossings.

Regulatory Findings

Administrative Procedure Act

The Department is publishing this rule as an interim final rule, with a 30-day provision for post-promulgation public comments, based on the “good cause” exceptions set forth at 5 U.S.C. 553(b)(3)(B) and 553(d)(3). The rule will not take effect, however, until August 15, 2006. Publishing the rule in this way, with a post-promulgation opportunity for comment, will allow the Department of State to make the rule effective at the earliest opportunity. Allowing a full 30-day comment period followed by a publication of the final rule with a further 30 days before its effective date is not practicable or in the public interest. That process would delay retention by the Department of State of the authorized surcharge, urgently needed in order to cover the increased costs attendant to implementing the provisions of the Intelligence Reform and Terrorism Prevention Act of 2004. That law, passed in the aftermath of the September 11, 2001 terrorist attacks, seeks to increase the national security of the United States by requiring all arrivals (both foreign national and U.S. citizen) to possess a suitably secure travel document. By expedited retention of the surcharge through an interim final rule, the Department of State will have sufficient time to fund the costs of increased passport demand in fiscal year 2006 and to prepare for the production of a new, convenient card format passport in fiscal year 2007. Comments received before the end of the comment period will be addressed in a final rule.

Regulatory Flexibility Act/Executive Order 13272: Small Business

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

The Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

The Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4; 109 Stat. 48; 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule does not result in any such expenditure nor will it significantly or uniquely affect small governments. Therefore, no actions were deemed necessary.

Executive Order 13132: Federalism

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

Executive Order 12866: Regulatory Review

The Department of State considers this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. Therefore, the Department has submitted the rule to the Office of Management and Budget for its review.

Executive Order 12988: Civil Justice Reform

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

The Paperwork Reduction Act of 1995

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

List of Subjects in 22 CFR Part 51

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

Accordingly, for the reason set forth above, 22 CFR part 51 is amended as follows:

PART 51—PASSPORTS

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

Authority: 8 U.S.C. 1153 note, 1351, 1351 note; 10 U.S.C. 2602(c); 22 U.S.C. 214, 2504(a), 4201, 4206, 4215, 4219; 31 U.S.C. 9701; Public Law 105-277, 112 Stat. 2681 et seq.; Public Law 109-167, 119 Stat. 3578; Public Law 108-447, 118 Stat. 2809 et seq.; E.O. 10718, 22 FR 4632, 3 CFR, 1954-1958 Comp., p. 382; E.O. 11295, 31 FR 10603, 3 CFR, 1966-1970 Comp., p. 570.

2. Section 51.61 is amended by redesignating paragraphs (b) and (c) as paragraphs (c) and (d) and adding a new paragraph (b) to read as follows:

§ 51.61

Passport fees.

* * * * *

(b) A surcharge of six dollars on the filing of each application for a passport in order to cover the costs of meeting the increased demand for passports as a result of actions taken to comply with section 7209(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (8 U.S.C. 1165 note). The surcharge will be recovered by the Department of State from within the passport fee reflected in Schedule of Consular Fees. The surcharge will be imposed until October 1, 2010.

* * * * *

Dated: August 4, 2006.

Henrietta Fore,

Under Secretary for Management, Department of State.