10060 Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 

DEPARTMENT OF STATE 

22 CFR Part 41 

RIN 1400–AB49 

[Public Notice 5711] 

Visas: Documentation of 

Nonimmigrants Under the Immigration 

and Nationality Act, as Amended 

AGENCY: State Department. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

Department of States regulations related 

to students and exchange visitors to 

reflect changes introduced by Public 

Law108–441, and numerous 

administrative and procedural changes 

that have occurred with respect to these 

paragraphs following the transfer of the 

exchange visitor INA 212(e) waiver 

authority in 1999 from the United States 

Information Agency (USIA) to the 

Bureau of Consular Affairs in the 

Department of State. A number of these 

changes are non-substantive (i.e., agency 

name changes [the Department of 

Homeland Security in place of the 

Immigration and Naturalization 

Service], updating of office 

designations, etc.). Other changes reflect 

statutory amendments regarding waivers 

for the exchange visitor physicians and 

the proposed reconstitution of the 

Exchange Visitor Waiver Review Board. 

DATES: This rule is effective on March 7, 

2007. 

FOR FURTHER INFORMATION CONTACT: 

Charles Robertson, Legislation and 

Regulations Division, Visa Services, 

Department of State, Washington, DC 

20520–0106, (202) 663–1202, e-mail 

(robertsonce3@state.gov). 

SUPPLEMENTARY INFORMATION: 

Why is the Department promulgating 

this rule? 

On October 1, 1999, the United States 

Information Agency was consolidated 

into the United States Department of 

State. The reorganization was carried 

out in accordance with the Foreign 

Affairs Reform and Restructuring Act of 

1998, which also called for the Arms 

Control and Disarmament Agency and 

some functions of the Agency for 

International Development to be 

integrated into the Department of State. 

As a consequence of this extensive 

merger, the Department of State issued 

a final rule (64 FR 54538–54541) 

amending USIA’s regulations. The final 

rule repealed, revised, re-designated, 

and otherwise amended USIA’s 

authorities. Among other things, the 

USIA Waiver Review Branch of the 

Office of the General Counsel was 

moved into the Department of State’s 

Visa Office. The USIA Waiver Review 

Branch became the Waiver Review 

Division of the Office of Legislation, 

Regulations, and Advisory Assistance, 

Visa Services, Bureau of Consular 

Affairs, CA/VO/L/W. It maintains its 

previous responsibilities for reviewing 

applications by J–1 exchange visitors 

who are seeking waivers of the two-year 

foreign residence requirement set forth 

at Section 212(e) of the Immigration and 

Nationality Act (INA). The Division 

makes recommendations to the 

Department of Homeland Security 

concerning such waivers. 

Do these administrative changes really 

need changes in the authorities? 

The Department of State inherited a 

multitude of functions as a result of the 

October 1, 1999 consolidation of USIA 

into the Department of State. The 

pertinent regulations to the waiver 

function contain errors as well as outof-date references, so this regulation 

corrects these items. Also, Public Law 

108–441, signed into law on December 

3, 2004, amended section 214(l) of the 

Immigration and Nationality Act, which 

makes certain changes regarding foreign 

medical graduates who obtain J–1 status 

in order to receive graduate medical 

education or training. 

What specific errors does this 

regulation address? 

Our regulation updates the required Jvisa application form (Certificate of 

Eligibility for Exchange Visitor (J–1) 

Status), IAP–66, to reflect the current 

Department-approved designation, DS–

2019. The term ‘‘Secretary of State’’

replaces the term ‘‘Director of USIA’’. 

The Department of Homeland Security 

replaces the Immigration and 

Naturalization Service. The medical 

schools have been clearly identified as 

‘‘foreign’’ medical schools. The Waiver 

Review Board, which is occasionally 

and incorrectly referred to as the 

‘‘division’’ rather than the ‘‘board’’, is 

also herein corrected. Finally, references 

to USIA’s authorities previously located 

at 22 CFR part 514 have been corrected 

to reflect their relocation at 22 CFR 

41.62 and 41.63. The regulation also 

simplifies language identifying the 

jurisdictional DHS office to which the 

waiver recommendation is sent. The 

language is flexible permitting DHS to 

designate different offices without the 

need for the Department to modify these 

regulations. 

Why is the Department making the 

review of persecution cases with the 

Bureau of Democracy, Human Rights 

and Labor (DRL) permissive rather than 

mandatory? 

Section 212 (e) of the Act grants the 

Department of Homeland Security 

(DHS), exclusive authority to determine 

the existence of prospective persecution 

in these cases. Thus, the Visa Office 

honors the holding of DHS in these 

cases and perceives no need to submit 

all cases for further review. We have 

found that the results are sufficiently 

consistent with DHS findings to render 

this action superfluous. Furthermore, 

the Waiver Review Division will only 

submit a case for an opinion if it 

believes that circumstances may have 

meaningfully changed since the DHS 

finding of persecution. 

Why is the Waiver Review Board being 

reconstituted? 

The Waiver Review Board provided 

USIA with an excellent means of 

deciding cases that have compelling 

competing interests. The Visa Office 

found the Board to be a useful tool for 

representing differing interests and for 

reaching a consensus on difficult cases. 

This regulation proposes to realign the 

representation of the Board by 

apportioning Board membership 

between policy formulators in the 

Bureau of Consular Affairs and 

principals administering the exchange 

visitor program interests in the Bureau 

of Education and Cultural Affairs. The 

rule proposes to designate the Principal 

Deputy Assistant Secretary for Consular 

Affairs as the chair. 

Why is the Department not clearly 

identifying the number of cases that can 

be approved annually under the 

Conrad program? 

The old regulation indicates that 20 

exchange visitor physicians could 

qualify for this program per state 

annually. But the law was amended to 

increase that number to 30. Further 

modifications to the numerical 

limitation on Conrad program 

beneficiaries are a distinct possibility; 

consequently, to avoid periodic 

amendment of the regulation, the 

language is being modified to refer nonspecifically to the annual limitation. 

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. 


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Regulatory Flexibility Act/Executive 

Order 13272 

Small Business. This rule is not 

subject to the notice-and-comment 

rulemaking provisions of the 

Administrative Procedure Act or any 

other act, and, accordingly it does not 

require analysis under the Regulatory 

Flexibility Act (5 U.S.C. 601, et seq.) 

and Executive Order 13272, section 3(b). 

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 will not 

result in any such expenditure, nor will 

it significantly or uniquely affect small 

governments. 

The 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: Regulatory 

Review 

The Department of State has reviewed 

this 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 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 

proposed 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 41 

Aliens, Foreign officials, Immigration, 

Nonimmigrants, Passports and Visas, 

Students. 

■ For the reasons stated in the preamble, 

the Department of State amends 22 CFR 

Part 41 to read as follows: 

PART 41—[AMENDED] 

■ 1. The authority citation for part 41 

continues to read: 

Authority: 8 U.S.C. 1104; Pub. L. 105–277, 

112 Stat. 2681–795 through 2681–801. 

Additional authority is derived from Section 

104 of the Illegal Immigration Reform and 

Immigrant Responsibility Act of 1996 

(IIRIRA) Pub. L. 104–208, 110 Stat. 3546. 

■ 2. Section 41.62 is amended by 

revising paragraphs (a)(1), (c)(1)(i), 

(c)(1)(ii), and (c)(3) to read as follows: 

§ 41.62 Exchange visitors. 

(a) * * * 

(1) Has been accepted to participate, 

and intends to participate, in an 

exchange visitor program designated by 

the Bureau of Education and Cultural 

Affairs, Department of State, as 

evidenced by the presentation of a 

properly executed Form DS–2019, 

Certificate of Eligibility for Exchange 

Visitor (J–1) Status; 

* * * * * 

(c) * * * 

(1) * * * 

(i) The alien’s participation in one or 

more exchange programs was wholly or 

partially financed, directly or indirectly, 

by the U.S. Government or by the 

government of the alien’s last legal 

permanent residence; or 

(ii) At the time of the issuance of an 

exchange visitor visa and admission to 

the United States, or, if not required to 

obtain a nonimmigrant visa, at the time 

of admission as an exchange visitor, or 

at the time of acquisition of such status 

after admission, the alien is a national 

and resident or, if not a national, a legal 

permanent resident (or has status 

equivalent thereto) of a country which 

the Secretary of State has designated, 

through publication by public notice in 

the Federal Register, as clearly 

requiring the services of persons 

engaged in the field of specialized 

knowledge or skill in which the alien 

will engage during the exchange visitor 

program; or 

* * * * * 

(3) The country in which 2 years’

residence and physical presence will 

satisfy the requirements of INA 212(e) in 

the case of an alien determined to be 

subject to such requirements is the 

country of which the alien is a national 

and resident, or, if not a national, a legal 

permanent resident (or has status 

equivalent thereto). 

* * * * * 

■ 3. Section 41.63 is amended by 

revising paragraphs (a)(1)(ii), (a)(2), 

(a)(3), (b)(1), (b)(2), (c)(1), (c)(3), (c)(4) 

introductory text, (c)(5), (d)(1), (d)(2), 

(d)(3), (e)(1), (e)(2), (e)(3)(i), (e)(3)(ii), 

(e)(3)(iii), (e)(3)(iv), (e)(3)(v), (e)(3)(viii), 

(e)(4), (f) and (g) to read as follows: 

§ 41.63 Two-year home-country physical 

presence requirement. 

(a) * * * 

(1) * * * 

* * * * * 

(ii) Who at the time of admission or 

acquisition of status under 101(a)(15)(J) 

was a national or legal permanent 

resident of a country which the 

Secretary of State, pursuant to 

regulations prescribed by him, had 

designated as clearly requiring the 

services of persons engaged in the field 

of specialized knowledge or skill in 

which the alien was engaged [See the 

most recent ‘‘Revised Exchange Visitor 

Skills List’’, at http:// 

exchanges.state.gov/education/ 

jexchanges/participation/skills_list.pdf]; 

or 

* * * * * 

(2) Upon the favorable 

recommendation of the Secretary of 

State, pursuant to the request of an 

interested United States Government 

agency (or in the case of an alien who 

is a graduate of a foreign medical school 

pursuing a program in graduate medical 

education or training, pursuant to the 

request of a State Department of Public 

Health, or its equivalent), or of the 

Secretary of Homeland Security after the 

latter has determined that departure 

from the United States would impose 


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exceptional hardship upon the alien’s 

spouse or child (if such spouse or child 

is a citizen of the United States or a 

legal permanent resident alien), or that 

the alien cannot return to the country of 

his nationality or last legal permanent 

residence because he would be subject 

to persecution on account of race, 

religion, or political opinion, the 

Secretary of Homeland Security may 

waive the requirement of such two-year 

foreign residence abroad in the case of 

any alien whose admission to the 

United States is found by the Secretary 

of Homeland Security to be in the 

public interest except that in the case of 

a waiver requested by a State 

Department of Public Health, or its 

equivalent, the waiver shall be subject 

to the requirements of section 214(l) of 

the Immigration and Nationality Act (8 

U.S.C. 1184). 

(3) Except in the case of an alien who 

is a graduate of a foreign medical school 

pursuing a program in graduate medical 

education or training, the Secretary of 

Homeland Security, upon the favorable 

recommendation of the Secretary of 

State, may also waive such two-year 

foreign residence requirement in any 

case in which the foreign country of the 

alien’s nationality or last legal 

permanent residence has furnished the 

Secretary of State a statement in writing 

that it has no objection to such waiver 

in the case of such alien. 

Notwithstanding the foregoing, an alien 

who is a graduate of a foreign medical 

school pursuing a program in graduate 

medical education or training may 

obtain a waiver of such two-year foreign 

residence requirements if said alien 

meets the requirements of section 214(l) 

of the Immigration and Nationality Act 

(8 U.S.C. 1184) and paragraphs (a) (2) 

and (e) of this section. 

(b) * * * 

(1) An exchange visitor who seeks a 

waiver of the two-year home-country 

residence and physical presence 

requirement on the grounds that such 

requirement would impose exceptional 

hardship upon the exchange visitor’s 

spouse or child (if such spouse or child 

is a citizen of the United States or a 

legal permanent resident alien), or on 

the grounds that such requirement 

would subject the exchange visitor to 

persecution on account of race, religion, 

or political opinion, shall submit the 

application for waiver (DHS Form I–

612) to the jurisdictional office of the 

Department of Homeland Security. 

(2)(i) If the Secretary of Homeland 

Security (Secretary of DHS) determines 

that compliance with the two-year 

home-country residence and physical 

presence requirement would impose 

exceptional hardship upon the spouse 

or child of the exchange visitor, or 

would subject the exchange visitor to 

persecution on account of race, religion, 

or political opinion, the Secretary of 

DHS shall transmit a copy of his 

determination together with a summary 

of the details of the expected hardship 

or persecution, to the Waiver Review 

Division, in the Department of State’s 

Bureau of Consular Affairs. 

(ii) With respect to those cases in 

which the Secretary of DHS has 

determined that compliance with the 

two-year home-country residence and 

physical presence requirement would 

impose exceptional hardship upon the 

spouse or child of the exchange visitor, 

the Waiver Review Division shall 

review the program, policy, and foreign 

relations aspects of the case, make a 

recommendation, and forward it to the 

appropriate office at DHS. If it deems it 

appropriate, the Waiver Review 

Division may request the views of each 

of the exchange visitors’ sponsors 

concerning the waiver application. 

Except as set forth in paragraph (g)(4) of 

this section, the recommendation of the 

Waiver Review Division shall constitute 

the recommendation of the Department 

of State. 

(iii) With respect to those cases in 

which the Secretary of DHS has 

determined that compliance with the 

two-year home-country residence and 

physical presence requirement would 

subject the exchange visitor to 

persecution on account of race, religion, 

or political opinion, the Waiver Review 

Division shall review the program, 

policy, and foreign relations aspects of 

the case, including consultation if 

deemed appropriate with the Bureau of 

Human Rights and Humanitarian Affairs 

of the United States Department of 

State, make a recommendation, and 

forward such recommendation to the 

Secretary of DHS. Except as set forth in 

paragraph (g)(4) of this section, the 

recommendation of the Waiver Review 

Division shall constitute the 

recommendation of the Department of 

State and such recommendation shall be 

forwarded to DHS. 

(c) * * * 

(1) A United States Government 

agency may request a waiver of the twoyear home-country residence and 

physical presence requirement on behalf 

of an exchange visitor if such exchange 

visitor is actively and substantially 

involved in a program or activity 

sponsored by or of interest to such 

agency. 

* * * * * 

(3) A request by a United States 

Government agency shall be signed by 

the head of the agency, or his or her 

designee, and shall include copies of all 

IAP 66 or DS–2019 forms issued to the 

exchange visitor, his or her current 

address, and his or her country of 

nationality or last legal permanent 

residence. 

(4) A request by a United States 

Government agency, excepting the 

Department of Veterans Affairs, on 

behalf of an exchange visitor who is a 

foreign medical graduate who entered 

the United States to pursue graduate 

medical education or training, and who 

is willing to provide primary care or 

specialty medicine in a designated 

primary care Health Professional 

shortage Area, or a Medically 

Underserved Area, or psychiatric care in 

a Mental Health Professional Shortage 

Area, shall, in additional to the 

requirement set forth in paragraphs 

(c)(2) and (3) of this section, include: 

* * * * * 

(5) Except as set forth in paragraph 

(g)(4) of this section, the 

recommendation of the Waiver Review 

Division shall constitute the 

recommendation of the Department of 

State and such recommendation shall be 

forwarded to the Secretary of DHS. 

(d) * * * 

(1) Applications for waiver of the twoyear home-country residence and 

physical presence requirement may be 

supported by a statement of no objection 

by the exchange visitor’s country of 

nationality or last legal permanent 

residence. The statement of no objection 

shall be directed to the Secretary of 

State through diplomatic channels; i.e., 

from the country’s Foreign Office to the 

Department of State through the U.S. 

Mission in the foreign country 

concerned, or through the foreign 

country’s head of mission or duly 

appointed designee in the United States 

to the Secretary of State in the form of 

a diplomatic note. This note shall 

include applicant’s full name, date and 

place of birth, and present address. If 

deemed appropriate, the Department of 

State may request the views of each of 

the exchange visitor’s sponsors 

concerning the waiver application. 

(2) The Waiver Review Division shall 

review the program, policy, and foreign 

relations aspects of the case and forward 

its recommendation to the Secretary of 

DHS. Except as set forth in § 41.63(g)(4), 

infra, the recommendation of the Waiver 

Review Division shall constitute the 

recommendation of the Department of 

State. 

(3) An exchange visitor who is a 

graduate of a foreign medical school and 

who is pursuing a program in graduate 

medical education or training in the 

United States is prohibited under 


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Federal Register / Vol. 72, No. 44 / Wednesday, March 7, 2007 / Rules and Regulations 10063 

section 212(e) of the Immigration and 

Nationality Act from applying for a 

waiver solely on the basis of no 

objection from his or her country of 

nationality or last legal permanent 

residence. However, an alien who is a 

graduate of a foreign medical school 

pursuing a program in graduate medical 

education or training may obtain a 

waiver of such two-year foreign 

residence requirements if said alien 

meets the requirements of section 214(l) 

of the Immigration and Nationality Act 

(8 U.S.C. 1184) and paragraphs (a)(2) 

and (e) of this section. 

(e) * * * 

(1) Pursuant to Public Law 103–416, 

in the case of an alien who is a graduate 

of a medical school pursuing a program 

in graduate medical education or 

training, a request for a waiver of the 

two-year home-country residence and 

physical presence requirement may be 

made by a State department of Public 

Health, or its equivalent. Such waiver 

shall be subject to the requirements of 

section 214(l) of the Immigration and 

Nationality Act (8 U.S.C. 1194(l)) and 

this § 41.63. 

(2) With respect to such waiver under 

Public Law 104–416, if such alien is 

contractually obligated to return to his 

or her home country upon completion 

of the graduate medical education or 

training, the Secretary of State is to be 

furnished with a statement in writing 

that the country to which such alien is 

required to return has no objection to 

such waiver. The no objection statement 

shall be furnished to the Secretary of 

State in the manner and form set forth 

in paragraph (d) of this section and, 

additionally, shall bear a notation that it 

is being furnished pursuant to Public 

Law 103–416. 

(3) * * * 

(i) A completed DS–3035. Copies of 

these forms may be obtained from the 

Visa Office or online at http:// 

www.travel.state.gov. 

(ii) A letter from the Director of the 

designated State Department of Public 

Health, or its equivalent, which 

identifies the foreign medical graduate 

by name, country of nationality or 

country of last legal permanent 

residence, and date of birth, and states 

that it is in the public interest that a 

waiver of the two-year home residence 

requirement be granted; 

(iii) An employment contract between 

the foreign medical graduate and the 

health care facility named in the waiver 

application, to include the name and 

address of the health care facility, and 

the specific geographical area or areas in 

which the foreign medical graduate will 

practice medicine. The employment 

contract shall include a statement by the 

foreign medical graduate that he or she 

agrees to meet the requirements set forth 

in section 214(l) of the Immigration and 

Nationality Act. The term of the 

employment contract shall be at least 

three years and the geographical areas of 

employment shall only be in areas, 

within the respective state, designated 

by the Secretary of Health and Human 

Services as having a shortage of health 

care professionals, unless the waiver 

request is for an alien who will practice 

medicine in a facility that serves 

patients who reside in one or more 

geographic areas so designated by the 

Secretary of Health and Human Services 

without regard to whether such facility 

is located within such a designated 

geographic area. For the latter situation, 

which will be referred to as ‘‘nondesignated requests’’, the contract 

should also state that the term of the 

employment contract shall be at least 

three years and employment shall only 

be in a facility that serves patients who 

reside in one or more geographic areas 

so designed by the Secretary of Health 

and Human Services as having a 

shortage of health care professionals. 

(iv) Evidence establishing that the 

geographic area or areas in the state in 

which the foreign medical graduate will 

practice medicine or where patients 

who will be served by the foreign 

medical graduates reside, are areas 

which have been designated by the 

Secretary of Health and Human Services 

as having a shortage of health care 

professionals. For purposes of this 

paragraph, the geographic area or areas 

must be designated by the Department 

of Health and Human Services as a 

Health Professional Shortage Area 

(‘‘HPSA’’) or as a Medically 

Underserved Area/Medically 

Underserved Population (‘‘MUA/ 

MUP’’). 

(v) Copies of all forms IAP 66 or DS–

2019 issued to the foreign medical 

graduate seeking the waiver; 

* * * * * 

(viii) Because of the numerical 

limitations on the approval of waivers 

under Public Law 103–416, i.e., no more 

than the maximum number of waivers 

for each State each fiscal year as 

mandated by law, each application from 

a State Department of Public Health, or 

its equivalent, shall be numbered 

sequentially, beginning on October 1 of 

each year. The ‘‘non-designated’’

requests will also be numbered 

sequentially with appropriate identifier. 

(4) The Waiver Review Division shall 

review the program, policy, and foreign 

relations aspects of the case and forward 

its recommendation to the Secretary of 

DHS. Except as set forth in paragraph 

(g)(4) of this section, the 

recommendation of the Waiver Review 

Division shall constitute the 

recommendation of the Department of 

State. 

(f) Changed Circumstances. An 

applicant for a waiver on the grounds of 

exceptional hardship or probable 

persecution on account of race, religion, 

or political opinion, has a continuing 

obligation to inform the Department of 

Homeland Security of changed 

circumstances material to his or her 

pending application. 

(g) The Waiver Review Board. 

(1) The Waiver Review Board 

(‘‘Board’’) shall consist of the following 

persons or their designees: 

(i) The Principal Deputy Assistant 

Secretary of the Bureau of Consular 

Affairs; 

(ii) The Director of Office of Public 

Affairs for the Bureau of Consular 

Affairs; 

(iii) The Legislative Management 

Officer for Consular Affairs, Bureau of 

Legislative Affairs; 

(iv) The Director of the Office of 

Exchange Coordination and Designation 

in the Bureau of Educational and 

Cultural Affairs; and 

(v) The Director of the Office of Policy 

and Evaluation in the Bureau of 

Educational and Cultural Affairs. 

(2) A person who has had substantial 

prior involvement in a particular case 

referred to the Board may not be 

appointed to, or serve on, the Board for 

that particular case unless the Bureau of 

Consular Affairs determines that the 

individual’s inclusion on the Board is 

otherwise necessary or practicably 

unavoidable. 

(3) The Principal Deputy Assistant 

Secretary of Consular Affairs, or his or 

her designee, shall serve as Board 

Chairman. No designee under this 

paragraph (g)(3) shall serve for more 

than 2 years. 

(4) Cases will be referred to the Board 

at the discretion of the Chief, Waiver 

Review Division, of the Visa Office. The 

Chief, Waiver Review Division, or his or 

her designee may, at the Chairman’s 

discretion, appear and present facts 

related to the case but shall not 

participate in Board deliberations. 

(5) The Chairman of the Board shall 

be responsible for convening the Board 

and distributing all necessary 

information to its members. Upon being 

convened, the Board shall review the 

case file and weigh the request against 

the program, policy, and foreign 

relations aspects of the case. 

(6) The Bureau of Consular Affairs 

shall appoint, on a case-by-case basis, 

from among the attorneys in the State 

Department’s Office of Legal Advisor 


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one attorney to serve as legal advisor to 

the Board. 

(7) At the conclusion of its review of 

the case, the Board shall make a written 

recommendation either to grant or to 

deny the waiver application. The 

written recommendation of a majority of 

the Board shall constitute the 

recommendation of the Board. Such 

recommendation shall be promptly 

transmitted by the Chairman to the 

Chief, Waiver Review Division. 

(8) At the conclusion of its review of 

the case, the Board shall make a written 

recommendation either to grant or to 

deny the waiver application. The 

written recommendation of a majority of 

the Board shall constitute the 

recommendation of the Board. Such 

recommendation shall be promptly 

transmitted by the Chairman to the 

Chief, Waiver Review Division. 

Dated: February 23, 2007. 

Maura Harty, 

Assistant Secretary for Consular Affairs, 

Department of State. 

[FR Doc. E7–3871 Filed 3–6–07; 8:45 am] 

BILLING CODE 4710–06–P 

DEPARTMENT OF JUSTICE 

28 CFR Parts 0, 5, 12, 17, 65, and 73 

[Docket No. NSD 100; AG Order No. 2865–

2007] 

Office of the Attorney General; 

National Security Division 

AGENCY: Department of Justice. 

ACTION: Final rule. 

SUMMARY: This rule amends part 0 of 

title 28 of the Code of Federal 

Regulations to reflect the establishment 

of the National Security Division at the 

Department of Justice. The National 

Security Division was created by section 

506 of the USA PATRIOT Improvement 

and Reauthorization Act of 2005 (‘‘the 

Act’’). This rule, which sets forth the 

Division’s organization, mission and 

functions, amends the Code of Federal 

Regulations in order to conform the 

Department’s regulations to the Act and 

to reflect accurately the Department’s 

internal management structure. 

This rule also amends the 

Department’s regulations in title 28 

other than in part 0 to make 

nomenclature and organizational 

changes reflecting the establishment of 

the National Security Division. 

DATES: Effective Date: March 7, 2007. 

FOR FURTHER INFORMATION CONTACT: 

Jessie Liu, National Security Division, 

U.S. Department of Justice, Washington, 

DC 20530; Telephone (202) 514–1057. 

SUPPLEMENTARY INFORMATION: On March 

9, 2006, the President signed the USA 

PATRIOT Improvement and 

Reauthorization Act of 2005 (‘‘the Act’’), 

Public Law 109–277 (120 Stat. 192). 

Section 506 of the Act created a new 

National Security Division (NSD) in the 

Department of Justice. This rule 

conforms the Department’s regulations 

to the Act and sets forth the new 

Division’s organization, mission, and 

functions. 

This rule reflects the establishment of 

the NSD, reporting to the Deputy 

Attorney General, by consolidating the 

resources of the Office of Intelligence 

Policy and Review (OIPR) and the 

Criminal Division’s Counterterrorism 

and Counterespionage Sections. These 

organizational changes will strengthen 

the Department’s efforts to combat 

terrorism and other threats to national 

security. 

Consolidating OIPR and the Criminal 

Division’s Counterterrorism and 

Counterespionage Sections under the 

NSD will ensure greater coordination 

and unity of purpose among the 

Department’s primary organizational 

units that handle core national security 

matters. These changes will allow the 

Department to maximize the 

effectiveness of prosecutors handling 

cases in the core national security fields 

of counterterrorism and 

counterespionage, who will continue to 

carry out the same critical functions 

they handle today. The NSD will be 

positioned to coordinate all related 

Department resources and ensure that 

critical information is shared as 

appropriate across the Department and 

the Executive Branch. 

The mission of the NSD is to 

coordinate the Department’s efforts in 

carrying out its core mission of 

combating terrorism and protecting 

national security. Among the major 

functions the NSD will perform are the 

following: 

• Develop, enforce, and supervise the 

application of all federal criminal laws 

related to the national counterterrorism 

and counterespionage enforcement 

programs, except those specifically 

assigned to other Divisions; 

• Prosecute and coordinate a wide 

range of criminal prosecutions and 

investigations targeting individuals and 

organizations involving terrorist acts at 

home or against U.S. persons or 

interests abroad or that assist in the 

financing of or providing support to 

those acts; 

• Administer the Foreign Intelligence 

Surveillance Act; 

• Supervise sensitive areas of law 

enforcement related to the activities of 

the National Security Division, except 

tasks assigned to other Divisions; 

• Advise, assist, coordinate with, and 

train those in the law enforcement 

community, including federal, state, and 

local prosecutors, investigative agencies 

and foreign criminal justice entities 

(provided that any training of foreign 

criminal justice entities should be 

conducted in coordination with the 

Criminal Division), in matters related to 

the Division’s activities; 

• Advise the Attorney General, the 

Office of Management and Budget, and 

the White House on matters relating to 

the national security activities of the 

United States; and 

• Through the Assistant Attorney 

General for National Security, serve as 

the Department of Justice’s primary 

liaison to the Director of National 

Intelligence. 

This rule also makes further 

amendments to the Department’s 

regulations in title 28 other than in part 

0 in order to make nomenclature and 

organizational changes reflecting the 

establishment of the NSD. Generally, the 

changes involve either adding the NSD 

to the list of the Department’s 

components or substituting the NSD in 

place of either the Criminal Division or 

the Office of Intelligence Policy and 

Review. In some instances, the Assistant 

Attorney General for National Security 

is substituted for the Assistant Attorney 

General, Criminal Division or for the 

Counsel for Intelligence Policy, as 

appropriate. 

This rule only makes changes to the 

Department’s internal organization and 

structure and does not affect the rights 

or obligations of the general public. 

Administrative Procedure Act—5 

U.S.C. 553 

This rule is a rule of agency 

organization and relates to a matter 

relating to agency management and is 

therefore exempt from the requirements 

of prior notice and comment and a 30- 

day delay in the effective date. See 5 

U.S.C. 553(a)(2), 553(b)(3)(A). 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act (5 

U.S.C. 605(b)), has reviewed this 

regulation and by approving it certifies 

that this regulation will not have a 

significant economic impact on a 

substantial number of small entities 

because it pertains to personnel and 

administrative matters affecting the 

Department. Further, a Regulatory 

Flexibility Analysis was not required to 

be prepared for this final rule because 

the Department was not required to 


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