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[Federal Register: December 30, 2010 (Volume 75, Number 250)]
[Rules and Regulations]               
[Page 82242-82243]
From the Federal Register Online via GPO Access []
22 CFR Part 40
[Public Notice: 7285]
Visas: Waiver for Ineligible Nonimmigrants Under the Immigration 
and Nationality Act
AGENCY: State Department.
ACTION: Final rule.
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.
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 
 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 
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.
For the reasons stated in the preamble, the Department of State amends 
22 CFR part 40 as follows:
1. The authority citation for part 40 will continue to read as follows:
    Authority:  8 U.S.C. 1104.
2. Section 40.301 is amended by revising paragraph (a) to read as 
Sec.  40.301  Waiver for ineligible nonimmigrants under INA 
    (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]