Comment on FR Doc # E7-16173

The interim final rule purports to allow the State Department to publish on its web site a statement of the number of business days which the department has to comply with a request for expedited processing of a passport application, in lieu of causing that statement to be published in the Federal Register, and, thereafter, having the statement in the Code of Federal Regulations. The interim final rule is procedurally deficient. The State Department failed to comply with 1 C.F.R. part 51, which sets forth the conditions under which an agency may incorporate in a regulation a reference to material which is not in the Code of Federal Regulations. The failure to comply was entire. Examples: (1) The State Department failed to seek and obtain the permission of the Office of the Federal Register before the incorporation by reference came into force. (2) A web page is not a 1 C.F.R. part 51 eligible publication. (3) The State Department web page is a publication which is in the possession of the State Department, not a publication in the possession of the Office of the Federal Register. The interim final rule is substantively deficient. If the number of business days which the State Department has to comply with a request for expedited processing of a passport application remains stated in 22 C.F.R. section 51.66(b), then an intended change in the stated number of days would require notice to the public and an opportunity for the public to be heard on a proposed change. The interim final rule makes it possible for the State Department to change the number of days by a unilateral entry by the State Department on its web page. A unilateral entry would short-circuit the notice and the opportunity aspects of the rule-making process, to which aspects the public is entitled by law. The State Department wrote in the Federal Register (72 FR 45888 at page 45889): Under the new standard, the public will be notified on the Department's Web site, http://www.travel.state.gov, of the number of business days in which the Department is completing expedited processing. This will allow the Department flexibility to alert the public without delay of the current processing time for expedited requests. The public benefits from this change by having accurate notice of the service that will be provided to them and from having the service available from the Department. We believe this will allow the public to continue to consider using expedited processing to self-select urgent cases. The position of the State Department is ingenuous. The public is not "notified", other than as prescribed by law. A web page is not a prescribed mode of notification. State Department "flexibility" is a sotto-voce admission that the aim of the interim final rule is to allow the State Department to act unilaterally. "Accurate notice" is a red herring. The public obtains accurate notice of regulations from the Federal Register and from the Code of Federal Regulations, both of which are readily available. Accuracy of notice of a regulation which is in force does not excuse cutting the public out of rule-making input when 22 C.F.R. section 51.66(b) is to be amended. The public does not benefit from denial of its rule-making input. Stephen Krueger Attorney at Law