Comment on FR Doc # E7-03870

1. The proposed definition of "electronic passport" is a description, not a definition. That's why it's long. Suggestion: "Electronic passport means a passport manufactured with an RFID chip." 2. The proposed definition of "minor" turns in part on marriage, which is not the norm under state law. For example, the age for obtaining a junior driver license usually is 16 is 17, marital status regardless. If a minor under the age of 18 is married, then divorced, what is his status? The proposed definition is silent on the subject. 3. The proposed definition of "United States" makes an irrelevant distinction between the continental United States on the one hand and Alaska and Hawaii on the other. Also, the Northern Mariana Islands and American Samoa were omitted from the definition. Further, non-state areas should be listed in an order which approximates their locations. Suggestion: "United States, in a geographic sense, means the fifty states, the District of Columbia, the Virgin Islands of the United States, Puerto Rico, American Samoa, Guam, and the Northern Mariana Islands." A separate issue is that the State Department excludes from the proposed definition of "United States," in a geographic sense, various other places under United States jurisdiction -- Midway Island, Baker Island, Palmyra Island, and so on. The United States exercises jurisdiction over non-state areas (other than the District of Columbia) by virtue of a law (e.g., Virgin Island Organic Act; Guano Act) or a treaty, not by State Department grace. Therefore, the State Deparment lacks authority to exlude from the definition of "United States," in a geographic sense, any place over which the United States exercises jurisdiction. 4. The proposed definition of "United States citizen" glosses over other ways of obtaining citizenship, such as resumption of nationality. To avoid this, there should not be specification of any mode of acquisition of citizenship. A related proposed definition is, "U.S. national means a U.S. citizen or a U.S. non-citizen national." This is badly phrased. A citizen is a national, though not every national is a citizen. Suggestion: The State Department should copy the definition of "national" in 8 U.S.C. sec. 1101. 5. Under the heading of "Signature of bearer," the proposed regulation should be modified (a) by adding "for use" after "valid"; and (b) by substituting "after it is" for "only." A passport issued by the State Department is a valid document. The proposed regulation sets a standard for validity of use; it does not set a standard of inherent validity. "[I]n the space designated for signature" should be "on the signature line." 6. The proposed regulation which permits invalidation by the State Department of a passport due to a damaged or defective chip is contrary to the assertion by the State Department, at the time that intended use of chips was announced, that it would be up to a passport holder to decide whether to continue use of a passport with a non-functioning chip. Add "material" after "observable." 7. The proposed regulation concerning return of a passport provides that a law- enforcement agency is to send a passport in its possession, which is no longer useful for law-enforcement purposes, to the State Department. This is contrary to case law, under which personal property taken from a person, whether in a civil action or in a criminal case, by the government, must be returned to him, unless the government proves, by noticed motion, that it has a superior claim to the personal property. The government may not willy-nilly refuse to return personal property. By "law-enforcement agency," the State Department intends police forces, in relation to alleged crimes. However, there is civil law-enforcement in addition to criminal law-enforcement. The SEC, for one, is a law-enforcement agency. Its authority includes enforcement of stock laws and exchanges laws civilly, but civil disputes are hardly the concern of the State Department. There should be a specification that law enforcement intends enforcement of criminal laws. 8. The proposed regulations about which government employees, in or out of the State Department, may be authorized by the State Department to issue passports set personnel practices, a matter which is not of concern to members of the public. Inasmuch as personnel practices do not pertain to the general public, they have no place in the Code of Federal Regulations. The proposed regulations require that a person involved in passport issuance not have a misdemeanor conviction for crimes involving moral turpitude or breach of trust. This is inaccurate, in that breach of trust is a category within moral turpitude. Further, case law defines "moral turpitude," and specifies which crimes carry with them the opprobium of moral turpitude. It is unnnecessary for the State Department to list some moral-turpitude crimes. 9. The proposed regulation concerning an affidavit of an identifying witness is inconsistent with case law, under which there is no exclusion from testimony of a possible witness who received or expects a fee for providing a service. Example: An expert witness. Payment to a witness goes to credibility, not testimonial capability. 10. The proposed regulation that a passport may not be designated as valid only for travel to Israel fails to make reference to the general State Department policy of not printing any geographic limitations in passports. Stephen Krueger Attorney at Law