[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Rules and Regulations]
[Pages 82242-82243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32944]
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DEPARTMENT OF STATE
22 CFR Part 40
[Public Notice: 7285]
Visas: Waiver for Ineligible Nonimmigrants Under the Immigration
and Nationality Act
AGENCY: State Department.
ACTION: Final rule.
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SUMMARY: This rule incorporates a revision to the Immigration and
Nationality Act made in section 5503(1) of the Intelligence Reform and
Terrorism Prevention Act of 2004 relative to the grounds of
inadmissibility under the Immigration and Nationality Act (INA) for
which consular officers or the Secretary of State may recommend that
the Secretary of Homeland Security exercise discretionary waiver
authority in the case of an applicant for a nonimmigrant visa.
DATES: This rule is effective December 30, 2010.
FOR FURTHER INFORMATION CONTACT: Lauren A. Prosnik, Legislation and
Regulations Division, Visa Services, Department of State, 2401 E
Street, NW., Room L-603D, Washington, DC 20520-0106, (202) 663-2951.
SUPPLEMENTARY INFORMATION:
Why is the Department promulgating this rule?
The Intelligence Reform and Terrorism Prevention Act of 2004,
Public Law 108-458, at Subtitle E, section 5501(a)(2), amended INA
212(d)(3)(A), replacing a bar against a waiver for an alien who is
ineligible for a nonimmigrant visa under INA 212(a)(3)(E) with a bar
against a waiver for an alien who is ineligible for a nonimmigrant visa
under clauses (i) or (ii) of INA 212(a)(3)(E). The same legislation
also amended INA 212(a)(3)(E) to add clause (iii), to which the waiver
bar does not apply. This rule amends 22 CFR Part 40 to conform to these
amended provisions.
Regulatory Findings
Administrative Procedure Act
This regulation involves a foreign affairs function of the United
States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not
subject to the rule making procedures set forth at 5 U.S.C. 553.
Regulatory Flexibility Act/Executive Order 13272: Small Business
Because this final rule is exempt from notice and comment
rulemaking under 5 U.S.C. 553, it is exempt from the regulatory
flexibility analysis requirements set forth at sections 603 and 604 of
the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless,
consistent with section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 605(b)), the Department certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This regulates individual aliens who are ineligible under INA
212(a)(3)(E)(i) and 212(a)(3)(E)(ii) and does not affect any
[[Page 82243]]
small entities, as defined in 5 U.S.C. 601(6).
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, 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.
Small Business Regulatory Enforcement Fairness Act of 1996
This 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 import markets.
Executive Order 12866
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 this
final regulation justify its costs. The Department does not consider
this final rule to be an economically significant 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, competition, jobs, the environment, public health or safety,
or State, local or tribal governments or communities.
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 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.
Paperwork Reduction Act
This rule does not impose information collection requirements under
the provisions of the Paperwork Reduction Act, 44 U.S.C. Chapter 35.
List of Subjects in 22 CFR Part 40
Aliens, Immigration,Visas.
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For the reasons stated in the preamble, the Department of State amends
22 CFR part 40 as follows:
PART 40--REGULATIONS PERTAINING TO BOTH NONIMMIGRANTS AND
IMMIGRANTS UNDER THE IMMIGRATION AND NATIONALITY ACT, AS AMENDED
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1. The authority citation for part 40 will continue to read as follows:
Authority: 8 U.S.C. 1104.
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2. Section 40.301 is amended by revising paragraph (a) to read as
follows:
Sec. 40.301 Waiver for ineligible nonimmigrants under INA
212(d)(3)(A)
(a) Report or recommendation to Department. Except as provided in
paragraph (b) of this section, consular officers may, upon their own
initiative, and shall, upon the request of the Secretary of State or
upon the request of the alien, submit a report to the Department for
possible transmission to the Secretary of Homeland Security pursuant to
the provisions of INA 212(d)(3)(A) in the case of an alien who is
classifiable as a nonimmigrant but who is known or believed by the
consular officer to be ineligible to receive a nonimmigrant visa under
the provisions of INA 212(a), other than INA 212(a) (3)(A)(i)(I),
(3)(A)(ii), (3)(A)(iii), (3)(C), (3)(E)(i), or (3)(E)(ii).
* * * * *
Dated: December 7, 2010.
Janice L. Jacobs,
Assistant Secretary for Consular Affairs, Department of State.
[FR Doc. 2010-32944 Filed 12-29-10; 8:45 am]
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