[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Rules and Regulations]
[Pages 72520-72523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27404]


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DEPARTMENT OF STATE

22 CFR Part 51

[Public Notice: 11609]
RIN 1400-AE68


Passports: Option for Passport Applicants Eligible To Apply by 
Mail for Renewal of Passports To Apply On-Line

AGENCY: Department of State.

[[Page 72521]]


ACTION: Final rule.

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SUMMARY: Pursuant to Department regulations, the renewal of a U.S. 
passport must meet certain requirements to qualify for submission of an 
application by mail. The Department will now provide qualified 
applicants the option of submitting renewal applications by mail or on-
line via the Department's official website. This amendment will provide 
more flexibility for the renewal applicant, will improve the customer 
experience, and eliminate the added burden, time, and cost to the 
customer by providing the on-line option as an alternative to the mail 
in process.

DATES:  This final rule is effective on December 23, 2021.

FOR FURTHER INFORMATION CONTACT: Kelly Cullum, Office of Adjudication, 
Passport Services, (202) 485-8800, or email 
[email protected].

SUPPLEMENTARY INFORMATION: The Department published a proposed rule, 
Public Notice 11457 at 86 FR 43458, August 9, 2021 (the NPRM), with a 
request for comments to amend 22 CFR 51.21(b), (b)(2), (b)(3); and 
51.8(a), (b), (c), and (d) to allow eligible applicants the option to 
apply on-line via the Online Passport Renewal (OPR) system. Applicants 
must meet all of the eligibility requirements for using OPR or will be 
referred to the paper application process. Applicants using OPR will 
enter their application information and upload their photos directly 
into the OPR system and submit their payment through pay.gov. This 
process will improve efficiency and accessibility by offering online 
verification of renewal eligibility, electronic photo upload, and 
electronic payment. Applications received through OPR will 
automatically enter review queues at the passport agency, thus 
eliminating the physical application and processing at the Lockbox. The 
new OPR system will improve the customer experience, reduce operational 
and maintenance costs, and focus on data quality, protection, and 
traceability. The first release of the OPR system will be limited in 
its release and apply to persons in the United States who are 
submitting an application in the same name, gender marker, date of 
birth, and place of birth as the most recently issued passport of the 
same type with the intent that future releases will permit changes and 
be used by persons applying abroad.
    The rule was discussed in detail in Public Notice 11457, as were 
the Department's reasons for the other changes to the regulations. The 
Department is now promulgating a final rule with minor changes from the 
proposed rule and no substantive change.
    Analysis of Comments: The Department provided 60 days for comment 
on the NPRM. The comment period closed October 8, 2021.
    The Department received twelve responsive comments, none of which 
were opposed to this amendment. Several commenters noted their concerns 
about possible identity theft and insisted on the use of the latest 
technology to protect applicants. Online passport applications are 
subject to the same rigorous protection of personally identifiable 
information (PII) as physical applications. The Department processes 
passport applications, whether mailed or submitted online, on 
controlled workstations accessed by authorized employees only. The 
rollout of the OPR system is compliant with the Department's policy (5 
FAM 772.1) in that ``encryption and digital certificates must be 
integrated into the applications to the greatest extent possible.''
    Two commenters also requested that online payment be acceptable and 
specifically, that it include use of credit cards. As noted in the 
proposed rule, applicants using the OPR will submit payment through 
pay.gov which already accepts credit cards.
    Two commenters discussed the need for online submission of 
supporting documents or using existing information in U.S. government 
databases to verify citizenship. They noted the difficulty of sending 
original vital records and naturalization certificates. As discussed in 
the proposed rule, eligible OPR users will upload applications and 
photos directly to the system eliminating the need for paper-based 
applications. Adults renewing passports who are eligible to use OPR 
generally do not need to submit supporting documentation because the 
issuance of a prior passport serves as citizenship evidence. In most 
cases prior passport issuance information is already available in 
adjudication systems. The Department coordinates with federal agencies 
such as USCIS as well as vital records offices to protect the integrity 
of the passport application process, verify citizenship documentation, 
and confirm entitlement to a U.S. passport. Passport Services' 
modernization efforts include online document verification.
    One commenter requested that the Department make OPR available for 
first-time applicants and another requested it be available for 
applicants located outside the United States. As defined in 22 CFR 
51.21(a), first-time applicants (who by statute, 22 U.S.C. 213, are 
required to verify their application by an in person oath), applicants 
who have never been issued a passport in his or her own name, 
applicants who have not been issued a passport for the full validity 
period of 10 years within 15 years of the date of a new application, 
and minors under the age of 16 must apply for a passport by appearing 
in person before a passport agent or passport acceptance agent. The 
applicant must verify the application by oath or affirmation before the 
passport agent or passport acceptance agent, sign the completed 
application, provide photographs and any other information or documents 
as prescribed or requested by the Department. These requirements cannot 
be addressed through OPR. As noted in the draft rule, the first release 
of the OPR system will apply to persons in the United States, with the 
intent for future releases applying to persons abroad.
    One commenter stated that applicants requesting a change in gender 
marker and those identifying as any gender besides male or female 
should be ineligible for OPR due to fraud concerns. The Department 
takes fraud very seriously and reviews all passport applications for 
possible fraud. Adjudicators receive extensive fraud training and 
utilize facial recognition technology and social security and birth 
information data verification to detect fraud, regardless of the method 
of application. Thus, while the Department appreciates the commenter's 
concern, it does not believe that the possibility of someone 
successfully committing fraud would be any greater after OPR is 
operational.
    Regarding gender markers and other changes that an applicant might 
wish to make to their information, the proposed regulatory text 
(proposed section 51.21(b)(iii)) provided that the ``first release of 
the OPR system will require that the application be submitted in the 
same name, sex [i.e., gender] marker, date of birth, and place of birth 
as the most recently issued passport of the same type with the intent 
that future releases will permit changes''. This text was removed from 
the text of the final rule because the Department determined that it is 
more appropriate for a statement of policy in the preamble and is not 
regulatory text. It does, however, reflect the limitation on the first 
release of the OPR system, but not Department policy for future 
releases.
    While supportive of OPR, several commenters noted the continued 
need for the Department to reduce service times and paperwork and the

[[Page 72522]]

assumption that OPR would provide faster processing times. As noted in 
the draft rule, OPR will provide more flexibility for the renewal 
applicant, will improve the customer experience, and eliminate the 
added burden, time, and cost to the customer by providing the on-line 
option as an alternative to the mail in process. Processing times 
listed on www.travel.state.gov are still Department standard for all 
passport applications, physical and electronic. Future expansion of OPR 
may allow for changes to expected service commitment times for online 
applications. The Department continuously strives to reduce passport 
processing service times through modernization initiatives.
    One person suggested maintaining a walk-in passport agency in every 
U.S. city with a population greater than 250,000. This is outside the 
scope of the proposed rule. However, the Department coordinates with a 
network of approximately 7,500 passport application acceptance 
facilities across the United States, all of which offer in-person 
service (though they may be by appointment only, rather than offering 
walk-in service). The network of passport application acceptance 
facilities provides convenient, nationwide access.
    Another commenter requested that the Department coordinate with 
USCIS to automatically link the passport application to the 
naturalization process. This is outside the scope of the proposed rule. 
However, the Department regularly coordinates with USCIS to provide 
passport application acceptance services at naturalization ceremonies.

Regulatory Findings

Administrative Procedure Act

    The Department published this rulemaking as a proposed rule and 
provided 60 days for public comment. The Department finds good cause 
for the effective date to be less than 30 days from date of 
publication. As stated in American Bankers Ass'n v. NCUA, 38 F. Supp. 
2d 114, 139-40 (D.D.C. 1999), according to the legislative history of 
the APA, the purpose for deferring the effectiveness of a final rule 
under Sec.  553(d) was to ``afford persons affected a reasonable time 
to prepare for the effective date of a rule or rules or to take other 
action which the issuance may prompt.'' S. REP. NO. 79-752, at 15 
(1946). In the same vein, the D.C. Circuit has explained that ``the 
purpose of the thirty-day waiting period is to give affected parties a 
reasonable time to adjust their behavior before the final rule takes 
effect.'' Omnipoint Corp. v. FCC, 316 U.S. App. D.C. 259, 78 F.3d 620, 
630 (D.C. Cir. 1996).
    There is no requirement for anyone to ``adjust their behavior'' or 
prepare for anything prior to this rule going into effect. Those who do 
not wish to renew their passports using the online procedure still have 
the current DS-82 available to them. The 30-day notice requirement of 
Sec.  553(d) is ``subject to the rule of prejudicial error.'' See 5 
U.S.C. 706; Petaluma FX Partners, LLC v. Commissioner, 416 U.S. App. 
D.C. 411, 420, 792 F.3d 72, 81 (2015).
    In addition, the Department is providing a benefit to the public by 
this rulemaking. The Department estimates that the online application 
will take approximately five minutes to complete, as opposed to 40 
minutes for the DS-82. OPR saves up to three weeks for initial 
application processing that includes mailing and receipt at the lockbox 
facility as well as the candling (fee processing, scanning, and 
batching) of the applications for physical transmission to passport 
agencies. Additionally, customers save time and money for transit to 
and from a post office for mailing, the price of an envelope, and 
either the cost of first-class stamp or express mail fees--of between 
$0.58 to $26.60 per application. Use of OPR allows the customer to 
create and submit a digital application, upload their photograph, and 
make a payment via pay.gov from a computer or mobile device with no 
physical/paper application involved.
    Therefore, the Department finds good cause to publish this rule 
without a delayed effective date under 5 U.S.C. 553(d)(1) and (3).

Regulatory Flexibility Act

    The Department of State certifies that this rule will not have a 
significant economic impact on a substantial number of small entities. 
This rule gives greater flexibility to applicants applying to renew 
their U.S. passport.

Unfunded Mandates Act of 1995

    This final rule does not result in the expenditure by state, local, 
and tribal governments, in the aggregate, or by the private sector, of 
$100 million or more in any year and it does not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the provisions of the Unfunded Mandates Act of 1995.

Congressional Review Act

    This rule is not a major rule as defined by the Congressional 
Review Act. This rule does not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign based companies in domestic and 
import markets.

Executive Order 12866

    The Office of Information and Regulatory Affairs has designated 
this rule ``not significant'' under Executive Order 12866. As explained 
in the preamble and the APA section above, the benefits of the rule 
outweigh any costs to the public (which the Department assesses will be 
minimal).

Executive Order 13132--Federalism

    This rule does not have sufficient federalism implications to 
require consultations or warrant the preparation of a federalism 
summary impact statement. The regulations implementing Executive Order 
12372 regarding intergovernmental consultation on federal programs and 
activities do not apply to this regulation.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    The Department has determined that this rulemaking does not have 
tribal implications, does not impose substantial direct compliance 
costs on Indian tribal governments, and does not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Paperwork Reduction Act

    This rulemaking is related to the information collection described 
in OMB Control No. 1405-0020 (Form DS-82). The web-based version of 
this form was approved in July 2021.

List of Subjects in 22 CFR Part 51

    Passports.

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

PART 51--PASSPORTS

0
1. The authority citation for part 51 continues to read as follows:

    Authority:  8 U.S.C. 1504; 18 U.S.C. 1621; 22 U.S.C. 211a, 212, 
212b, 213, 213n (Pub. L. 106-113 Div. B, Sec. 1000(a)(7) [Div. A, 
Title II, Sec. 236], 113 Stat. 1536, 1501A-430); 214, 214a, 217a, 
218, 2651a, 2671(d)(3), 2705, 2714, 2714a, 2721, & 3926; 26 U.S.C. 
6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of Pub. L. 
103-317, 108 Stat. 1760]; E.O. 11295, Aug. 6, 1966, FR 10603, 3 CFR, 
1966-1970 Comp., p. 570; Pub. L. 114-119, 130 Stat. 15; Sec. 1 of 
Pub. L. 109-210, 120

[[Page 72523]]

Stat. 319; Sec. 2 of Pub. L. 109-167, 119 Stat. 3578; Sec. 5 of Pub. 
L. 109-472, 120 Stat. 3554; Pub. L. 108-447, Div. B, Title IV, Dec. 
8, 2004, 118 Stat. 2809; Pub. L. 108-458, 118 Stat. 3638, 3823 (Dec. 
17, 2004).


0
2. Revise Sec.  51.8 to read as follows:


Sec.  51.8   Submission of currently valid passport.

    (a) When applying for a new passport in person or by mail, an 
applicant must submit for cancellation any currently valid passport of 
the same type.
    (b) When applying for a new passport on-line, an applicant must 
have the currently valid passport of the same type available for 
cancellation via the on-line process.
    (c) If an applicant is unable to produce a passport under paragraph 
(a) or (b) of this section, they must submit a signed statement in the 
form prescribed by the Department setting forth the circumstances 
regarding the disposition of the passport.
    (d) The Department may deny or limit a passport if the applicant 
has failed to provide a sufficient and credible explanation for lost, 
stolen, altered or mutilated passport(s) previously issued to the 
applicant, after being given a reasonable opportunity to do so.

0
3. Amend Sec.  51.21 by revising the paragraph (b) heading, paragraph 
(b)(2) and adding paragraph (b)(3) to read as follows:


Sec.  51.21   Execution of passport application.

* * * * *
    (b) Application by mail or on-line--persons in the United States. * 
* *
    (2) A person in the United States who previously has been issued a 
passport valid for 10 years in their own name may apply for a new 
passport by filling out, signing, and submitting an on-line application 
via the Department's official website if:
    (i) The applicant's most recently issued passport was issued when 
the applicant was 16 years of age or older, and has one year or less of 
validity remaining;
    (ii) The application is made not more than 15 years following the 
issue date of the most recently issued passport of the same type;
    (iii) The most recently-issued passport of the same type is 
available for verification via the on-line process.
    (3) The applicant must also provide photographs as prescribed by 
the Department and pay the applicable fees prescribed in the Schedule 
of Fees for Consular Services (22 CFR 22.1).
* * * * *

Kevin E. Bryant,
Deputy Director, Office of Directives Management, U.S. Department of 
State.
[FR Doc. 2021-27404 Filed 12-21-21; 8:45 am]
BILLING CODE 4710-06-P