05-18108. New Passport Amendment Policy

AGENCY:

Department of State.

ACTION:

Final rule.

SUMMARY:

This rule amends the passport regulations to abolish the U.S. passport amendment process, except for the convenience of the U.S. Government, and broadens the reasons for issuing a replacement passport at no additional cost to the applicant. The rule also adds unpaid fees as a ground for invalidating a passport.

DATES:

This rule will become effective on September 26, 2005.

FOR FURTHER INFORMATION CONTACT:

Sharon Palmer-Royston, Office of Passport Policy, Planning and Advisory Services, Bureau of Consular Affairs, telephone [phone].

SUPPLEMENTARY INFORMATION:

Analysis of Comments

The proposed rule was published on February 18, 2005. Comments were accepted from the public for 45 days. We received only 2 comments in response to the portion of the proposed rule that we are now publishing in final. Neither comment objected to the proposed change in the amendment process. Rather, both comments asked for greater detail as to how the new procedures will work. The process is discussed below. The comments are available for review at http://www.travel.state.gov, under the passport section, or at the State Department reading room.

Rule Change

This rule was originally published in the Federal Register on February 18, 2005 (70 FR 8305), as a proposed rule entitled “Electronic Passport” (RIN 1400-AB93) that included changes to the passport regulations needed due to the pending introduction of the electronic passport. This final rule separates the portions of the proposed regulation on passport amendments, replacement passports and unpaid fees from the portions of the proposed regulation that related exclusively to electronic passports. We separated them because a large volume of comments were received with respect to the introduction of the sections of the rule relating exclusively to the electronic passport, which the Department needs time to consider carefully. We do not believe, however, that there is any need to delay making the changes in passport amendment policy and the rules for invalidation of a passport planned in the proposed rule. In addition to deleting the portions of the proposed regulations relating exclusively to the electronic passport, the final rule includes a few minor changes in wording, but does not alter the substance of the proposed rule.

Regulatory Changes

Passport Amendments and Extensions Discontinued

By this rule, the Department discontinues the general practice of amending passports to correct or change data elements relating to the bearer or to the passport's validity period. This will improve document security by presenting all personal information only on one page, the passport data page. Moreover, in the future, the Department plans to issue U.S. passports with an electronic chip as an additional security feature. Once programmed, the chip cannot be edited. In order to protect the security of the electronic passport, the passport data page and the electronic chip would contain the same information.

Under this rule, when important information contained on the data page of a passport, for example, the bearer's name or the passport validity period, is changed, instead of manually amending the passport to reflect the new information, the Department will cancel the passport and issue a replacement. Issuance of a replacement will mean that the data page will reflect the correct personal information of the passport bearer and the correct validity period, and, in the case of an electronic passport, that the information will be identical to the information on the electronic chip. However, the rule reserves the possibility of amending a passport for the convenience of the U.S. Government in a small number of cases where it would be impossible or inadvisable to issue a replacement, such as when a passport must be limited in validity for direct return to the United States.

Application for Replacement Passport

Pursuant to Title 22 of the United States Code, Section 211a et seq. and E.O. 11295, 31 FR 10603 (Aug. 5, 1966), the Secretary has broad authority to issue regulations governing the issuance of passports. There is no statutory requirement to permit amendments to passports, as opposed to requiring that a new passport be issued when personal, or other, information changes. The Secretary has in the past exercised regulatory discretion to permit amendments. The current regulations in Section 51.20 of Title 22, Code of Federal Regulations (CFR) requires that an application for a passport or for an amendment of a passport shall be completed upon such forms as prescribed by the Department. An applicant for a passport amendment uses a specified application form. This rule will delete, in the first sentence of section 51.20, the words “an amendment,” to reflect the decision to discontinue amendments.

Section 51.64 of Title 22, CFR sets out the requirements for replacement of a passport at no cost. This rule will add new categories of such passports. The Department encourages U.S. citizens to keep their U.S. passports up to date as a document of identity. Doing so will help prevent unexpected problems that may occur when the identity shown on their passport does not match other identity materials. To encourage individuals to maintain passports that accurately reflect their current names and to alleviate some of the cost burden, an individual whose name has changed, as for example, through marriage or by court order, within the first year of validity of a new passport will be able to return the passport, along with a completed application, new photographs and proof of the personal information change for replacement with a full validity passport at no additional cost. This rule will also allow issuance at no cost of a replacement passport, for the balance of its period of validity, of a passport needed by law enforcement or the judiciary for evidentiary purposes.

Nearly all passports applied for abroad, except limited validity emergency passports, are printed in the United States. Applicants for limited validity emergency passports must pay the fees that are charged for a full-validity passport. This amendment provides that those who have been issued a one-year validity passport for emergency travel may apply for a full-validity replacement passport within one year of the issuance of the limited passport for no additional cost.

New Ground for Invalidating a Passport

Under this rule, if full payment of all applicable passport fees is not presented, as for example when a check is returned or a credit card charge is disputed after issuance of a passport, the Department, in addition to taking action to collect the delinquent fees under 22 CFR part 34 and the Federal Claims Collection Act, may send the delinquent bearer a letter to the bearer's last available address notifying him or her that the passport has been invalidated because the applicable fees have not been received. An invalidated passport cannot be used for travel.

Administrative Procedure Act

The Department is publishing this rule as a final rule, after publishing a proposed rule, allowing a 45-day provision for public comments, and consideration of all comments received. The Department provided for a shorter comment period than the 60 days suggested by Section 6(a) of E.O. 12866 because we believed 45 days would provide the public with a meaningful opportunity to comment while advancing important national security and foreign policy goals. In order to protect the security of U.S. borders, it is essential that the Department put the no amendment policy into effect as soon as possible.

Regulatory Flexibility Act/Executive Order 13272: Small Business

These final 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, and Executive Order 13272, section 3(b).

The Small Business Regulatory Enforcement Fairness Act of 1996

This final 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 export 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 will not result in any such expenditure nor will it significantly or uniquely affect small governments.

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 the distribution of power and responsibilities among the various levels of government. Nor will 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 has reviewed this final rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of the proposed regulation justify its costs. The Department does not consider the proposed rule to be an economically significant regulatory action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. However, because the proposed rule from which this final rule is derived does have important policy implications and involves a critical component of upgrading border security for the United States, this final rule has been provided to the Office of Management and Budget (OMB) for 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

In conjunction with the proposed rule, the Department determined that the portion of the proposed rule contained in this final rule contains collection of information requirements for the purposes of the PRA. The Department sought and received emergency six-month approvals from OMB for the use of four information collections. The Department is currently seeking three-year extensions of the OMB emergency approvals. The extensions are the subject of separate Federal Register notices and requests for public comment.

Two of the four collections involve existing forms that were already scheduled for PRA renewal in 2005. The Department has revised and updated the instructions associated with existing information collections number 1405-0004 (DS-11, Application for a U.S. Passport) and 1405-0020 (DS-82, Application for a U.S. Passport by Mail). Among other changes, the revisions notify applicants that a passport may be invalidated for lack of payment of the requisite fees.

The Department is also introducing two new collections of information. One of the new collections will introduce a new form, DS-5504 (U.S. Passport Re-Application Form), to permit application for a replacement full-validity passport within one year of passport issuance based on a change of name, incorrect data, or the emergency issuance abroad of a one-year full-fee passport. The other new collection (DS-4085, Application for Additional Visa Pages) will replace existing information collection number 1405-0007, which relates to Form DS-19. Form DS-19 is currently used to apply for amendment of a U.S. passport or request issuance of extra visa pages. Because passport amendments no longer will be made under the proposed rule, Form DS-19 will be discontinued. In its place, Form DS-4085 will be introduced solely to enable holders of a valid U.S. passport to request that extra visa pages be added to the passport.

List of Subjects in 22 CFR Part 51

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

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

PART 51—[AMENDED]

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

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

2. Section 51.4 is amended by revising paragraph (f) and adding paragraph (h)(3) to read as follows:

§ 51.4

Validity of passports.

* * * * *

(f) Limitation of validity. The Secretary may limit a passport's validity period to less than the normal validity period. The bearer of a limited passport may apply for a replacement passport, using the proper application, and submitting the limited passport, applicable fees, photos and additional documentation, if required, to support the issuance of a replacement passport.

* * * * *

(h) * * *

(3) The Department has sent a written notice to the bearer at the bearer's last known address that the passport has been invalidated because the Department has not received the applicable fees.

* * * * *

3-4. The first sentence of § 51.20 is revised to read as follows:

§ 51.20

General.

An application for a passport, a replacement passport, extra visa pages, or other passport related service must be completed upon such forms as the Department may prescribe.

* * * * *

5. Section 51.32 is revised to read as follows:

§ 51.32

Passport Amendments.

Except for the convenience of the U.S. Government, no passport will be amended.

6. Section 51.64 is revised to read as follows:

§ 51.64

Replacement Passports.

A passport issuing office may issue a replacement passport for the following reasons without payment of applicable fees:

(a) To correct an error or rectify a mistake of the Department.

(b) When the bearer has changed his or her name or other personal identifier listed on the data page of the passport, and applies for a replacement passport within one year of the date of the passport's original issuance.

(c) When the bearer of an emergency full fee passport issued for a limited validity period applies for a full validity passport within one year of the date of the passport's original issuance.

(d) When a passport is retained by law enforcement or the judiciary for evidentiary purposes and the bearer is still eligible to have a passport.

7. Section 51.66(a) is revised to read as follows:

§ 51.66

Expedited passport processing.

(a) Within the United States, an applicant for a passport service (including issuance, replacement or the addition of visa pages) may request expedited processing by a Passport Agency. All requests by applicants for in-person services at a Passport Agency shall be considered requests for expedited processing, unless the Department has determined that the applicant is required to apply at a Passport Agency.

* * * * *

8. The title of part 51, subpart E is revised to read as follows:

Subpart E—Limitations on Issuance or Use of Passports

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Dated: September 6, 2005.

Maura Harty,

Assistant Secretary for Consular Affairs, Department of State.