Department of State.
This proposed rule would amend the passport regulations to incorporate changes required by the electronic passport. The rule would define “electronic passport,” would include a damaged electronic chip as an additional basis for possible invalidation of a passport, would abolish the U.S. passport amendment process except for the convenience of the U.S. Government, and would enlarge the reasons for issuing a replacement passport at no fee. The rule would also add unpaid fees as a ground for invalidating a passport.
The Department will accept comments from the public up to 45 days from February 18, 2005.
Written comments and questions regarding the proposed rule should be addressed to: Chief, Legal Division, Office of Passport Policy, Planning and Advisory Services, 2100 Pennsylvania Ave., NW., 3rd Floor, Washington, DC 20037. You may also send comments by e-mail to: PassportRules@state.gov.
Persons with access to the internet may also view this notice and provide comments by going to the regulations.gov Web site at: http://www.regulations.gov/index.cfm. You must include the Regulatory Identification Number (RIN) in the subject line of your message.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Sharon Palmer-Royston, Office of Passport Policy, Planning and Advisory Services, Bureau of Consular Affairs, who may be reached at (202) 663-2662.End Further Info End Preamble Start Supplemental 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. Acquisition of United States nationality is provided for by Title III of the Immigration and Nationality Act of 1952, as amended (8 U.S.C. 1401, et seq.), including the acquisition of U.S. nationality but not citizenship under 8 U.S.C. 1408 by individuals born in an outlying possession of the United States. Section 1185(b) of Title 8, U.S.C., requires U.S. citizens to bear a valid U.S. passport to enter or depart the United States unless excepted—exceptions are provided in 22 CFR 53.2. 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 must subscribe to and submit a written application, as required by 22 U.S.C. 213. During its period of validity, a passport (when issued to a U.S. citizen for the maximum period authorized by law) is a document establishing proof of United States citizenship, pursuant to 22 U.S.C. 2705. 22 CFR 51.2(b) provides that unless authorized by the Department no person shall bear more than one valid or potentially valid U.S. passport at any one time.
The Department plans to introduce an enhanced version of the traditional passport, using an embedded electronic chip to digitally carry the information printed on the data page, a biometric version of the bearer's photo, and coding to prevent any digital data from being altered or removed. The contents of the data page of the traditional passport have been established for a very long time by international usage and by the International Civil Aviation Organization (ICAO). The current Machine Readable Passport format has been the international standard, used by the United States, since 1982 (ICAO Publication 9303, Machine Readable Travel Documents, Part I, Machine Readable Passports, Fifth Edition 2003). The first passport using the enhanced, electronic passport format is expected to be issued in mid-2005. After that, the issuance technology would be sequentially placed into all passport agencies, so that, within a year, all new passports would be issued in this format. All valid old-style passports would continue to be valid until they normally expire unless they were individually invalidated.
The technology selected for the electronic passport is the 64 kilobyte contactless integrated circuit chip with an antenna. The electronic chip itself has a very short read distance, approximately four inches. This choice is compatible with standards and recommendations of ICAO. The standards and recommendations are found in ICAO Publication 9303, Machine Readable Travel Documents, Part 1, Machine Readable Passports, Fifth Edition 2003; and in the recommendations found in Technical Reports and an Annex supplementing that publication relating to the technology supporting the use of electronic chips in travel documents. Specifically, the three Technical Reports are “Development of a Logical Data Structure—LDS for Optimal Capacity Expansion Technologies,” Revision 1.7, May 18, 2004; “Development and Specification of Globally Interoperable Biometric Standards for Machine Assisted Identity Confirmation Using Machine Readable Travel Documents,” Version 2.0, May 21, 2004; “PKI for Machine Readable Travel Documents Offering ICC Read-only Access,” Version 1.1, October 1, 2004. The Annex is “Use of Contactless Integrated Circuits in Machine Readable Travel Documents,” Version 4.0, May 5, 2004.
The electronic chip will carry the information on the data page of the passport plus a biometric identifier to enhance the ability to identify the bearer. The biometric chosen for the initial version of the U.S. electronic passport is the facial image, one of three biometrics currently identified by the International Civil Aviation Organization (ICAO) as suitable for inclusion in international travel documents, although the facial image was mandatory. Under the proposed rule, border inspectors would compare the passport bearer with the digital facial image stored on the electronic chip. ICAO also recognizes fingerprints and iris scans as acceptable biometrics. As biometric technology is rapidly advancing, the inclusion of facial image data in U.S. passports is considered a first step in ensuring that an effective biometric system is incorporated into the U.S. passport system.
Using an embedded electronic chip in the passport to store the information from the passport data page will enhance the security of the document and is expected to benefit travelers by improving the ability of border officials to verify personal identities. The Department plans to use this format because of the enhanced security features and improved port of entry performance provided by the electronic chip technology.
The Department considers the inclusion of biometric identifiers in international travel documents, made Start Printed Page 8306possible by electronic chip technology, to be a critical step in upgrading border security for the United States. The biometric identifier contained in the electronic passport is a digitized photograph of the bearer that will be able to be used with internationally interoperable facial recognition technology. The Department of Homeland Security will begin to implement reader technology through pilot programs by the end of the year. It is imperative that the Department enhance the ability to confirm that the bearer of a passport is the person to whom the passport was issued. This confirmation at ports of entry helps to prevent misuse of the U.S. passport by individuals who are terrorists, criminals, or others who present a security risk.
To verify that the data written on the electronic chip has not been tampered with, the Department proposes to employ digital signatures compliant with the ICAO Public Key Infrastructure (PKI) technology. In order to ensure that the data contained in the electronic chip matches the data printed in the physical book, electronic chip technology requires that the data on the electronic chip be written only once and not changed. Because the electronic chip technology selected may not be amended once written, United States passports would no longer be amended. Instead of amending passports when personal or administrative information changes, the passport would be replaced. If a bearer's personal information changes and the bearer makes a request within one year of original issuance, the replacement would be provided without payment of a fee. As described below, the discontinuation of amendments would be effective for all passports on the effective date of this rule. However, for the convenience of the U.S. Government, in rare cases such as travel under escort, when a person is returning to the United States and would no longer be entitled to a U.S. passport after return, the validity period could be manually limited and this limitation would be reflected on a later page.
Under the proposed rule, the passport's electronic chip would duplicate the data that appears on the visible data page of the passport: the bearer's name, date of birth and place of birth, the passport number, the dates of issuance and expiration, the issuing authority, the document type, the passport application reference number, and the photo in digitized format. It would also contain a unique chip identification number. Upon issuance, a series of numbers, called a digital signature, is stored on the chip, adding a major security improvement to the passport. The digital signature prevents anyone from changing the stored data. The stored information will be read at ports of entry around the world equipped with compatible readers. When activated by the port of entry reader, the electronic chip responds to the query by providing the stored information.
Recent press stories about the use of this technology have noted that the information will not be “encrypted” and mention the concern about identity theft by unauthorized persons through either skimming (the surreptitious reading of the electronic information without the holder's knowledge) or eavesdropping (intercepting information from the electronic chip while it is being read at an official port of entry station). The United States does not intend to encrypt the data for the following reasons: the personal data stored on the passport's electronic chip consists simply of the information traditionally and visibly displayed on the passport data page; encrypted data takes longer to read, increasing port of entry processing time; and in order to be globally interoperable, encryption would require a higher level of technology and more complicated technical coordination with other nations.
Although surreptitiously activating the electronic chip remotely and then reading the return signal amid ambient electronic noise is considered technically very difficult, the Department is taking measures to prevent skimming of the unencrypted data. By the time the first electronic passport is issued, the Department intends to place an anti-skimming feature in the passport.
Eavesdropping can only occur while the electronic chip is being read using a specially designed reader furnished with the proper public key. Eavesdropping is difficult to achieve, however, in a secured port of entry environment. In such an environment, the equipment needed to eavesdrop would be obvious and detectable to authorities managing the port of entry. The State Department will work vigorously with other governments to encourage them to eliminate the threat of eavesdropping by requiring all chip readers to be electronically shielded to prevent signals from being transmitted beyond the reader.
Under the proposed rule, a passport that contains a damaged, defective, or otherwise nonfunctioning electronic chip or with observable wear and tear that render it unfit for further use as a travel document may be invalidated by the Department of State. While an electronic passport with a nonfunctioning electronic chip may continue to be used if the data page is not damaged, it would nonetheless lack the ability to be read by chip readers at ports of entry and would not reflect the security features inherent in the electronic chip technology. If the damage were caused deliberately, the passport would be invalidated upon discovery. Individuals whose passports contain failed electronic chips may choose to obtain a replacement passport for the balance of the original validity period by applying presenting the passport, and new photos; or they may apply for a new full validity passport by applying presenting the passport, new photos and applicable fees.
Defining the Electronic Passport
Section 51.1 of Title 22, Code of Federal Regulations (CFR) defines the terms used in part 51. This rule would amend § 51.1 by adding a new paragraph (j) providing that an electronic passport is a passport containing an electronically readable device, a chip, encoded with the bearer's personal information contained on the data page, a digitized version of the bearer's photograph, a unique chip number and a digital signature to protect the integrity of the electronically readable information.
Damaged, Defective or Otherwise Nonfunctioning Electronic Chip
Section 51.6 of Title 22, Code of Federal Regulations (CFR), governs the validity of damaged United States passports. This rule would amend § 51.6 by adding new language providing that a damaged, defective, or otherwise nonfunctioning electronic chip may be grounds for invalidating a United States passport. A passport with an intact data page but a nonfunctioning electronic chip would still be used as a travel document. However, detected attempts to alter chip data or to substitute a different electronic chip would result in invalidation.
Passport Amendments and Extensions Discontinued
In order to protect the security of the electronic passport, the passport data page and the electronic chip would contain the same information. When important information contained in a passport, as 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 passport would be cancelled and a new passport would be issued. This is necessary because the Start Printed Page 8307electronic chip may not be changed once written. Issuance of a new passport would ensure that the data page and the chip information would continue to be identical. However, for the convenience of the U.S. Government, the validity period of a passport may be amended in a small number of cases where it would be impossible or inadvisable to issue a new passport.
In addition, valid old-style passports would be treated in the same way, and starting on the effective date of this regulation, they also would no longer be amended. While this change will impose an additional cost for some individuals who seek a new passport to reflect a change in personal data, it would improve the value of the passport as an identity document and increase passport security by confining all personal data to the data page. Discontinuing passport amendments would improve port of entry efficiency for both the passport bearer and port of entry officers by simplifying the comparison of the bearer's identity to the passport document.
The Department encourages Americans 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 identities and to alleviate some of the cost burden, an individual whose personal information has changed within the first year of validity of a new passport would be able to return the passport, along with a completed application, new photos and proof of the personal information change for replacement with a new full validity passport at no additional cost.
Sections 51.4, 51.20, 51.32, and 51.66, and the title of Subpart E of Title 22, Code of Federal Regulations (CFR) refer to or govern the procedure whereby United States passports are amended and extended. This rule would delete all references to the amendment or extension of U.S. passports.
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 § 51.20 of Title 22, Code of Federal Regulations (CFR) require 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 would delete, in the first sentence of § 51.20, the words “an amendment,” to reflect the decision to discontinue amendments.
Section 51.64 of Title 22, Code of Federal Regulations (CFR) sets out the requirements for replacement of a passport at no cost. This rule would add new categories of such passports. To encourage individuals to maintain a passport that accurately reflects their identity, the rule would provide that individuals who have changed their name and apply for a replacement passport within one year of the original issuance may be issued a replacement passport at no cost. This rule would also allow issuance at no cost of a replacement passport, for the balance of its period of validity, for one whose passport is needed by law enforcement or the judiciary for evidentiary purposes. A passport whose electronic chip has failed could be replaced at no cost by a passport issued for the balance of the original validity period.
Nearly all passports applied for abroad, except one-year limited validity emergency passports, are printed in the United States. At the time of application, all applicable fees are collected. This amendment would reflect that those who have been issued a one-year validity passport abroad because of 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 the proposed 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 delivery 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, could also 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. This proposed rule would add unpaid fees as a ground for invalidating a passport.
Administrative Procedure Act
The Department is publishing this rule as a proposed rule, with a 45-day provision for public comments. The Department is providing for a shorter period than the 60 days suggested by Section 6(a) of E.O. 12866 because we believe 45 days will 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 get the electronic passport program up and running as soon as possible. In addition, a prompt launch of the program will increase our credibility and good will with visa waiver program countries, who under U.S. law are required to implement similar biometric passport programs.
Regulatory Flexibility Act/Executive Order 13272: Small Business
These proposed 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, and Executive Order 13272, section 3(b).
The Small Business Regulatory Enforcement Fairness Act of 1996
This proposed 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 would 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 would not result in any such expenditure nor would it significantly or uniquely affect small governments. Start Printed Page 8308
Executive Orders 12372 and 13132: Federalism
This regulation would 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 would 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 proposed 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, the proposed rule does have important policy implications and involves a critical component of upgrading border security for the United States. Accordingly, it has been provided to the Office of Management and Budget (OMB) for review, along with the related Paperwork Reduction Act submissions described below.
By eliminating amendments to passports except for the convenience of the U.S. Government, the proposed regulation would impose additional costs on persons who, under the existing regulations, could obtain amendments (such as name changes, corrections in identifying data, or extensions of limited validity periods), at no charge (except for postage, expediting fees and special return postage). An individual whose name has changed or whose personal data is incorrectly reflected on the passport would be able to obtain a replacement passport within one year of the passport's issuance at no charge (except for postage, expediting fees and special return postage) but would incur the additional expense of new passport photographs for the replacement passport. The estimated average cost for photographs is $11 per set, and the Department estimates that there will be 20,000 applicants for no charge replacement passports each year. Thus, the Department estimates that the added cost burden on those eligible to seek replacement passports without charge would be $220,000 annually.
Under the proposed regulation, a person who sought to have his or her passport amended more than one year after the date of passport issuance would have to apply for a new passport and incur the costs of photographs ($11 estimated average cost), the passport processing fee ($55 for a full validity 10-year passport, $40 for a passport valid for five years for persons under 16 years of age), the execution fee if not eligible to apply by mail ($30) and a new security surcharge ($12), for a per person additional cost, depending on fee applicability, of between $63-108. The security surcharge was authorized by the Consolidated Appropriations Act, 2005 (Public Law 108-447, Division B, Title IV, Diplomatic and Consular Programs appropriation), which set the amount at $12. The surcharge will be separately implemented through an amendment to the Department of State's Schedule of Fees for Consular Services, which is expected to be published shortly under RIN 1400-AB94.) The Department estimates that 180,000 individuals who would have been able to obtain no-cost amendments under the existing regulations will apply for new passports annually and incur such costs under the proposed regulation. We arrived at the estimate by subtracting 30,000 uses of Department of State Form DS-19 (U.S. Passport Amendment/Validation Application, OMB Information Collection 1405-0007) for the addition of visa pages from the total of approximately 230,000 uses of Form DS-19 in FY 2004. We also subtracted the estimated 20,000 applications for no-charge passports based on name changes or incorrect personal information changes within the first year of validity, as described above. The remaining 180,000 would be applying for fee passports. Multiplying 180,000 applications by the maximum $108 additional per person cost results in an estimated cost burden of $19,440,000. Because not every applicant would incur the maximum additional per person cost (some are children and others are adults who could apply by mail without incurring an execution fee), we believe that this figure exceeds the actual cost burden that will be imposed.
The electronic chip is designed to be very durable. If an electronic chip fails, the bearer may apply for a no cost replacement passport issued for the balance of the original validity period. However, given the durability of the chip and the fact that an electronic passport with a nonfunctioning chip may continue to be used if the data page is not damaged, we do not anticipate receiving many such applications. Accordingly, we anticipate that the economic effect would be minimal.
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
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from OMB for each collection of information they conduct, sponsor, or require through regulation. The Department of State has determined that this proposal contains collection of information requirements for the purposes of the PRA. In conjunction with the proposed rule, the Department has submitted to OMB its request for emergency review of four information collections, which are the subject of separate Federal Register notices and requests for public comment.
Two of the four collections involve existing forms that are scheduled for PRA renewal in 2005. The Department proposes to revise and update 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 would notify applicants that a passport may be invalidated for lack of payment of the requisite fees.
The Department has also submitted for OMB review two new collections of information. One of the new collections would 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) would 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 would be made under the proposed rule, Form DS-19 would be discontinued. In its place, Form DS-Start Printed Page 83094085 would be introduced solely to enable holders of a valid U.S. passport to request that extra visa pages be added to the passport.Start List of Subjects
List of Subjects in 22 CFR Part 51End List of Subjects
Accordingly, for the reasons set forth in the preamble, 22 CFR chapter I would be amended as follows:Start Part
1. The authority citation for part 51 continues to read as follows:
2. Section 51.1 is amended to add a new paragraph (j) to read as follows:
(j) Electronic passport means a passport containing an electronically readable device, an electronic chip encoded with the bearer's personal information printed on the data page, a digitized version of the bearer's photograph, a unique chip number, and a digital signature to protect the integrity of the stored information. Additional biometric information that may be required in the future will be the subject of a separate Federal rulemaking process.
3. In § 51.4, paragraph (f) is revised and a new paragraph (h)(3) is added to read as follows:
(f) Limitation of validity. The validity period of a passport may be limited by the Secretary to less than the normal validity period. The bearer of a limited passport may apply for a new passport, using the proper application, and submitting the limited passport, applicable fees, photos and additional documentation, if required, to support the issuance of a new 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.
4. Section 51.6 is revised to read as follows:
Any passport which has been materially changed in physical appearance or composition, or contains a damaged, defective or otherwise nonfunctioning electronic chip, or which includes unauthorized changes, obliterations, entries or photographs, or has observable wear and tear that renders it unfit for further use as a travel document may be invalidated.
5. The first sentence of § 51.20 is revised to read as follows:
An application for a passport, a replacement passport, extra visa pages, or other passport related service shall be completed upon such forms as may be prescribed by the Department. * * *
6. Section 51.32 is revised to read as follows:
Except for the convenience of the U.S. Government, no passport book will be amended.
7. Section 51.64 is revised to read as follows:
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.
(e) When a passport is issued to replace a passport with a failed electronic chip for the balance of the original validity period.
8. Section 51.66, paragraph (a) is revised to read as follows:
(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.
9. The title of part 51, subpart E is revised to read as follows:
Subpart E—Limitations on Issuance or Use of Passports
Dated: February 10, 2005.
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 05-3080 Filed 2-17-05; 8:45 am]
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