Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 58023 

marked or altered. In lieu of the original 

records, certified copies will be 

presented for evidentiary purposes (see 

28 U.S.C. 1733). 

§ 295.209 Procedure when a decision is 

not made prior to the time a response is 

required. 

If a response to a demand or request 

is required before the General Counsel 

can make the determination referred to 

in Sec.295.206, the General Counsel, 

when necessary, will provide the court 

or other competent authority with a 

copy of this part, inform the court or 

other competent authority that the 

demand or request is being reviewed, 

and seek a stay of the demand or request 

pending a final determination. 

§ 295.210 Procedure in the event of an 

adverse ruling. 

If the court or other competent 

authority fails to stay the demand, the 

employee upon whom the demand or 

request is made, unless otherwise 

advised by the General Counsel, will 

appear at the stated time and place, 

produce a copy of this part, state that 

the employee has been advised by 

counsel not to provide the requested 

testimony or produce documents, and 

respectfully decline to comply with the 

demand, citing United States ex rel. 

Touhy v. Ragen, 340 U.S. 462 (1951). A 

written response may be offered to a 

request, or to a demand, if permitted by 

the court or other competent authority. 

Subpart C—Schedule of Fees 

§ 295.301 Fees. 

(a) Generally. The General Counsel 

may condition the production of records 

or appearance for testimony upon 

advance payment of a reasonable 

estimate of the costs to OPM. 

(b) Fees for records. Fees for 

producing records will include fees for 

searching, reviewing, and duplicating 

records, costs of attorney time spent in 

reviewing the demand or request, and 

expenses generated by materials and 

equipment used to search for, produce, 

and copy the responsive information. 

Costs for employee time will be 

calculated on the basis of the hourly pay 

of the employee (including all pay, 

allowance, and benefits). Fees for 

duplication will be the same as those 

charged by OPM in its Freedom of 

Information Act regulations at 5 CFR 

part 294. 

(c) Witness fees. Fees for attendance 

by a witness will include fees, expenses, 

and allowances prescribed by the 

court’s rules. If no such fees are 

prescribed, witness fees will be 

determined based upon the rule of the 

Federal district court closest to the 

location where the witness will appear. 

Such fees will include cost of time spent 

by the witness to prepare for testimony, 

in travel, and for attendance in the legal 

proceeding. 

(d) Payment of fees. You must pay 

witness fees for current OPM employees 

and any records certification fees by 

submitting to the General Counsel a 

check or money order for the 

appropriate amount made payable to the 

Treasury of the United States. In the 

case of testimony by former OPM 

employees, you must pay applicable 

fees directly to the former employee in 

accordance with 28 U.S.C. 1821 or other 

applicable statutes. 

(e) Certification (authentication) of 

copies of records. The U.S. Office of 

Personnel Management may certify that 

records are true copies in order to 

facilitate their use as evidence. If you 

seek certification, you must request 

certified copies from OPM at least 45 

days before the date they will be 

needed. The request should be sent to 

the General Counsel. You will be 

charged a certification fee of $15.00 for 

each document certified. 

(f) Waiver or reduction of fees. The 

General Counsel, in his or her sole 

discretion, may, upon a showing of 

reasonable cause, waive or reduce any 

fees in connection with the testimony, 

production, or certification of records. 

(g) De minimis fees. Fees will not be 

assessed if the total charge would be 

$10.00 or less. 

Subpart D—Penalties 

§ 295.401 Penalties. 

(a) An employee who discloses 

official records or information or gives 

testimony relating to official 

information, except as expressly 

authorized by OPM or as ordered by a 

Federal court after OPM has had the 

opportunity to be heard, may face the 

penalties provided in 18 U.S.C. 641 and 

other applicable laws. Additionally, 

former OPM employees are subject to 

the restrictions and penalties of 18 

U.S.C. 207 and 216. 

(b) A current OPM employee who 

testifies or produces official records and 

information in violation of this part may 

be subject to disciplinary action. 

[FR Doc. E8–23605 Filed 10–3–08; 8:45 am] 

BILLING CODE 6325–48–P 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Parts 100 and 212 

[USCBP–2007–0084; CBP Dec. 08–41] 

RIN 1651–AA71 

Issuance of a Visa and Authorization 

for Temporary Admission Into the 

United States for Certain 

Nonimmigrant Aliens Infected With HIV 

AGENCY: Customs and Border Protection; 

DHS. 

ACTION: Final rule. 

SUMMARY: The Department of Homeland 

Security (DHS) is amending its 

regulations to provide, on a limited and 

categorical basis, a more streamlined 

process for nonimmigrant aliens 

infected with the human 

immunodeficiency virus (HIV) to enter 

the United States as visitors on 

temporary visas (for business or 

pleasure) for up to 30 days. 

Nonimmigrant aliens who do not meet 

the specific requirements of the rule or 

who do not wish to consent to the 

conditions imposed by this rule may 

elect to seek admission under current 

procedures and obtain a case-by-case 

determination of their eligibility for a 

waiver of the nonimmigrant visa 

requirements concerning inadmissibility 

for aliens who are infected with HIV. 

DATES: This rule is effective on October 

6, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Michael D. Olszak, Customs and Border 

Protection, Office of Field Operations, 

(703) 261–8424. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Background and Purpose 

II. The Final Rule 

III. Discussion of Comments 

A. Objections to the Inadmissibility of HIVPositive Aliens 

B. Opposition to Admission of HIVPositive Aliens 

C. Asylees and the Required Waiver of 

Adjustment of Status 

D. Privacy Rights/Annotation of Visas 

E. Whether the Rule Is More Stringent 

Than the Existing Process 

F. Sufficient Insurance and Medication 

G. Human Rights Concerns 

H. Public Health Reasons for the Rule 

I. Disparate Treatment Applied to 

Contagious Diseases 

J. The 30-Day Temporary Admission Limit 

K. Extension of the Comment Period 

L. Vagueness in Criteria and Medical 

Expertise of Consular Officers 

M. Negative Impact on United States 

Citizens 

N. Focus on Illegal Aliens 

O. Aliens Who Are Unaware of Their HIV 

Status 

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58024 Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 

1At the time the proposed rule was published, 

INA section 212a(1)(A)(i) specifically listed the 

etiologic agent that causes acquired immune 

deficiency syndrome. That language was deleted by 

the Tom Lantos and Henry J. Hyde United States 

Global Leadership Against HIV/AIDS, Tuberculosis, 

and Malaria Reauthorization Act of 2008, Public 

Law 110–293, section 305, 122 Stat. 2918 (July 30, 

2008). As Discussed below, however, the 

Department of Health and Human Services (HHS) 

regulatory text implementing the deleted 

prohibition continues to exist at the time of 

promulgation of this final rule. 

P. Appeal of Decision 

Q. Future Bar Due to Noncompliance 

R. Effect on Naturalization and Aliens 

From Visa Waiver Countries 

S. Returning Permanent Residents 

IV. Statutory and Regulatory Reviews 

I. Background and Purpose 

Section 212 of the Immigration and 

Nationality Act (INA) makes ineligible 

for admission into the United States any 

nonimmigrant alien ‘‘who is determined 

(in accordance with regulations 

prescribed by the Secretary of Health 

and Human Services) to have a 

communicable disease of public health 

significance.’’ See INA section 

212(a)(1)(A)(i); 8 U.S.C. 1182(a)(1)(A)(i); 

42 CFR 34.2.1 The Secretary of 

Homeland Security may authorize visa 

issuance and temporary admission of 

such nonimmigrants despite existing 

grounds of inadmissibility, subject to 

conditions prescribed by the Secretary. 

See INA section 212(d)(3)(A); 8 U.S.C. 

1182(d)(3)(A). 

On December 1, 2006, the President 

directed the Secretaries of State and 

Homeland Security to initiate a 

rulemaking action to propose a 

categorical authorization to allow HIVpositive nonimmigrant aliens to enter 

the United States through a streamlined 

process. See White House, Fact Sheet: 

World AIDS Day 2006, (December 1, 

2006), http://www.whitehouse.gov/ 

news/releases. On November 6, 2007, 

DHS published a notice of proposed 

rulemaking proposing a streamlined 

process for HIV-infected nonimmigrant 

aliens to more easily enter the United 

States through a streamlined process. 

See 72 FR 62593. 

This final rule adopts the proposed 

amendments to the regulations and 

simplifies the process for authorization 

of admission with some modifications 

in light of the public comments 

received. Under the final rule, DHS will 

allow aliens who are HIV-positive to 

enter the United States as visitors (for 

business or pleasure) for a temporary 

period not to exceed 30 days, without 

being required to seek such admission 

under the current, more complex 

(individualized, case-by-case) process 

provided under the current DHS 

procedures. 

The current process requires the 

Department of State (DOS) to make 

individual recommendations to DHS, 

which must make a case-by-case 

evaluation and decision to authorize the 

issuance of the visa and the applicant’s 

temporary admission. This process takes 

significant time. In fiscal year (FY) 2007, 

the average processing time for DHS to 

make decisions on such consular 

nonimmigrant recommendations (for 

issuance of visas and authorization for 

temporary admission) was 18 days. This 

final rule streamlines this process and 

will make visa authorization and 

issuance available to many aliens who 

are HIV-positive on the same day as 

their interview with the consular officer. 

II. The Final Rule 

An alien who is HIV-positive is 

currently inadmissible to the United 

States under INA section 212(a)(1)(A)(i), 

8 U.S.C. 1182(a)(1)(A)(i), as 

implemented through 42 CFR 34.2. As 

more fully discussed in the proposed 

rule, such aliens have been, and are 

currently, able to apply for admission to 

the United States pursuant to INA 

section 212(d)(3)(A), 8 U.S.C. 

1182(d)(3)(A), and applicable DHS 

regulations (8 CFR 212.4(a)), which 

allow the Secretary of Homeland 

Security to authorize issuance of a visa 

and temporary admission despite 

certain grounds for inadmissibility. 72 

FR 62593, 62594–5 (Nov. 6, 2007). 

These existing processes require 

specific, individualized action by DHS 

upon submission of eligibility 

information by the alien (the same kind 

of information that is required under the 

proposed regulations) that must be 

reviewed, evaluated, and ruled upon on 

a case-by-case basis. In contrast, the 

process established in this final rule 

would authorize a consular officer or 

the Secretary of State to categorically 

grant a nonimmigrant visa and authorize 

the applicant to apply for admission 

into the United States, notwithstanding 

an applicant’s inadmissibility due to 

HIV infection, if the applicant meets 

applicable requirements and conditions, 

without the additional step of seeking 

review and decision by DHS prior to the 

granting of the nonimmigrant visa. This 

categorical authorization provides a 

more streamlined and rapid process for 

obtaining temporary admission under 

INA section 212(d)(3)(A)(i), 8 U.S.C. 

1182(d)(3)(A)(i). 

Under current criteria for authorizing 

admission of otherwise inadmissible 

nonimmigrant aliens generally, DHS 

must take into consideration the risk of 

harm to society if the applicant is 

admitted into the United States, the 

seriousness of any immigration law or 

criminal law violations (if any), and the 

nature of the reason for travel. See 

Matter of Hranka, 16 I&N Dec. 491 (BIA 

1978). These are general criteria 

applicable to any application for 

authorization of a visa under INA 

section 212(d)(3)(A), 8 U.S.C. 

1182(d)(3)(A). 

DHS currently allows otherwise 

inadmissible aliens to apply for 

admission on a case-by-case basis by 

employing a balancing test involving 

several factors that incorporates the 

criteria required under Hranka 

(regardless of whether the authorization 

is applied for before a consular officer, 

the Secretary of State, or directly to 

DHS). As discussed in the proposed 

rule, DHS applies these criteria to HIVpositive aliens seeking admission to the 

United States on a temporary basis by 

considering whether: (1) The danger to 

the public health from admission of the 

nonimmigrant alien is minimal; (2) the 

possibility of the transmission of the 

infection is minimal; and (3) any cost 

will be incurred by any level of 

government agency in the United States 

(local, State, or Federal) without the 

prior consent of that agency. Consular 

officers must find (based on evidence 

provided by the applicant that satisfies 

reviewing officials) that the first two 

factors are no more than minimal and 

that there will not be a cost to an agency 

absent prior consent. 

This final rule incorporates these 

criteria, as well as additional factors 

applied under current policy that were 

developed in a series of instructions 

from the former Immigration and 

Naturalization Service (INS) and the 

Department of Justice (DOJ). 

Nonimmigrant aliens who are HIVpositive who do not meet the specific 

circumstances of these clarifying 

instructions or who do not wish to 

consent to the conditions imposed by 

this rule may still elect a case-by-case 

determination of their eligibility for 

issuance of nonimmigrant visas and 

admission. 

This final rule provides an additional 

avenue for temporary admission of HIVpositive nonimmigrant aliens while 

minimizing costs to the government and 

the risk to public health. These goals are 

accomplished by setting requirements 

and conditions that govern an alien’s 

admission, affect certain aspects of his 

or her activities while in the United 

States (e.g., using proper medication 

when medically appropriate, avoiding 

behavior that can transmit the 

infection), and ensure his or her 

departure after a short stay. This final 

rule facilitates the temporary admission 

to the United States of HIV-positive 

nonimmigrant aliens. 

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Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 58025 

2The final rule adopts, without change, the 

technical amendments to 8 CFR 212.4(e). 

This final rule is consistent with 

Congress’ humanitarian purpose in 

enacting the limited waiver of INA 

section 212(d)(3)(A), 8 U.S.C. 

1182(d)(3)(A), and complies with the 

statute regarding aliens inadmissible 

due to health reasons by prescribing 

‘‘conditions * * * to control and 

regulate the admission and return of 

inadmissible aliens applying for 

temporary admission.’’ INA section 

212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). 

Thus, under the final rule, an HIVpositive applicant for a nonimmigrant 

visitor visa would be required to satisfy 

criteria designed to ensure that the risk 

to the public health is minimized to the 

greatest reasonable extent and that no 

cost will be imposed on any level of 

government in the United States (local, 

State, or Federal). The short duration of 

admission under the amended 

regulation, and the various conditions 

designed to control the alien’s 

temporary stay and ensure his or her 

return (departure from the United 

States), minimize the risk of disease 

transmission in the United States, as 

well as the risk of increased burden on 

our public health resources. HIVpositive aliens not meeting the criteria 

under the amended regulation would 

still be able to seek individualized (caseby-case) consideration for admission 

pursuant to INA section 212(d)(3)(A), 8 

U.S.C. 1182(d)(3)(A), under current DHS 

policy. See 8 CFR 212.4(a) or (b). 

The final rule includes specific 

requirements (based in large part on the 

existing criteria) discussed in the 

proposed rule. 72 FR at 62595–6. After 

consultation with the HHS’ Centers for 

Disease Control and Prevention, and 

National Institutes of Health, and 

careful consideration of the comments 

received from the public on the 

proposed rule, DHS has determined not 

to change the criteria relating to medical 

etiology, personal understanding, 

limited potential health danger, 

continuity of health care, temporary 

admission, general enforcement, and 

general duration. DHS has made several 

modifications in light of the public 

comments, as discussed more fully 

below. 

Several commenters questioned 

whether it was appropriate to impose a 

waiver of adjustment of status pursuant 

to a grant of asylum under INA section 

208, 8 U.S.C. 1158. After further 

consideration, DHS agrees that asylees 

have continued eligibility for permanent 

resident status; therefore, under the 

final rule, an alien who has been 

granted asylum after having been 

admitted pursuant to the proposed 

categorical authorization will have 

continued eligibility to apply to adjust 

status under the asylum statute and 

regulations. However, nothing within 

the rule exempts the alien from the 

requirement that the alien establish his 

or her eligibility to adjust under INA 

section 209, 8 U.S.C. 1159. Specifically, 

nothing within this rule waives any of 

the requirements for adjustment of 

status including, but not limited to, the 

requirements in 8 CFR part 209. 

Additionally, the short duration 

raised a number of questions about 

extensions. After further consideration, 

DHS has decided to permit an 

additional period or periods of 

satisfactory departure in exigent 

circumstances under a provision 

modeled after the Visa Waiver Program. 

See 8 CFR 212.4(f)(5) of this final rule. 

Some commenters questioned 

whether aliens who receive this visa 

authorization will receive visas that 

identify them as HIV-positive. The visa 

will not be annotated in a manner that 

would allow the public to identify the 

alien as HIV-positive. 

This final rule does not create the 

provision for temporary admission of 

HIV-positive aliens; such a provision 

exists in statute and regulation. This 

rule merely provides an alternative, 

quicker process for obtaining admission 

to the United States under INA section 

212(d)(3)(A)(i) 8 U.S.C. 

1182(d)(3)(A)(i).2

III. Discussion of Comments 

The proposed rule solicited public 

comments over a 30-day comment 

period. DHS received over 700 

comments. 

A. Objections to the Inadmissibility of 

HIV-Positive Aliens 

By far the most numerous of all the 

comments are those objecting to the 

inadmissibility of HIV-positive aliens. 

Many of these commenters objected to 

the proposed rule’s process and called 

for repeal of the governing statute’s ban 

on HIV-positive aliens for various 

reasons, including the following: It is 

unnecessary and ineffective to protect 

the American public; it is 

discriminatory; it is unconstitutional; it 

is outdated and does not reflect current 

medical science. Others among these 

commenters expressed approval of the 

proposed process to streamline 

temporary admission for these aliens as 

a first step but also stated that the rule 

does not go far enough to make it easier 

for these aliens to travel to the United 

States. These latter commenters called 

also for the repeal of the statute’s HIV 

admission ban as a next step. One 

commenter suggested that the United 

States mirror Australia’s approach to 

admitting HIV-positive aliens (described 

only as less restrictive). Several 

commenters stated that international 

AIDS conferences are not held in the 

United States as a result of the 

inadmissibility of HIV-positive aliens. 

Some commenters objected to the 

governing statute’s inadmissibility 

provision that imposes the travel and 

immigration ban on HIV-positive aliens 

and to the proposed rule which, they 

claimed, creates the impression that the 

alleged discriminatory statute can be 

mitigated by the proposed process for 

temporary admission of these aliens. 

Some comments called upon the 

Secretary of Homeland Security and the 

President to withhold publication of a 

final rule and support repeal of the 

statute that imposes this inadmissibility. 

Repeal of the statutory inadmissibility 

provision (the admission ban) 

applicable to HIV-positive aliens is 

within the province of Congress as a 

matter of law, and the President recently 

signed legislation that removes from 

applicable law the language requiring 

that HIV must be included in the list of 

communicable diseases of public health 

significance. See Public Law 110–293, 

122 Stat. 2918 (July 30, 2008). The INA, 

as amended, makes inadmissible to the 

United States any alien ‘‘who is 

determined (in accordance with 

regulations prescribed by the Secretary 

of Health and Human Services) to have 

a communicable disease of public 

health significance * * *’’ INA section 

212(a)(1)(A)(i), 8 U.S.C. 1182(a)(1)(A)(i). 

Although Public Law 110–293 

eliminates the requirement that HIV be 

included in the list of communicable 

diseases of public health significance (as 

defined at 42 CFR 34.2), HIV remains on 

that list until HHS amends its 

regulation. See 42 CFR 34.2. HHS has 

indicated its intention to do so by 

rulemaking; pending such action, any 

alien who is HIV-positive is still 

inadmissible to the United States. 

This regulation will permit short-term 

admission while HHS completes a 

rulemaking to remove HIV from the list 

of communicable diseases of public 

health significance. 42 CFR 34.2. 

B. Opposition to Admission of HIVPositive Aliens 

A few commenters expressed 

objection to admission of HIV-positive 

aliens under the discretionary authority 

provision of the governing statute and 

urged its repeal. 

In the statute that imposed the ban on 

admission of aliens with communicable 

diseases of public health significance, 

Congress also provided for the 

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58026 Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 

discretionary exercise of authority to 

admit these aliens (among others) for a 

temporary period under certain 

circumstances. INA section 

212(d)(3)(A), 8 U.S.C 1182(d)(3)(A). 

Congress restricted the availability of 

this discretionary authority by 

precluding its application to aliens who 

are inadmissible due to several of the 

security and related grounds; Congress 

imposed no such restriction on aliens 

inadmissible on other grounds, 

including health-related reasons. Also, 

Congress has made available a waiver of 

inadmissibility for immigrants seeking 

admission to the United States who are 

inadmissible due to a communicable 

disease listed by HHS. INA sections 

209(c) and 212(g), 8 U.S.C. 1159(c) and 

1182(g). 

This rule does not create a new 

regulatory provision allowing HIVpositive aliens to enter the United States 

temporarily; the rule merely provides an 

alternative process in the regulations to 

streamline issuance of nonimmigrant 

visas to, and the temporary admission 

of, HIV-positive aliens under existing 

statutory authority within the 

Secretary’s discretion. While the 

existing process provides for case-bycase authorization (by DHS) for issuing 

visas and authorizing temporary 

admission, the authorization process 

provided in this rule is categorical, i.e., 

authorization is granted through this 

rulemaking to any alien applicant who 

meets the requirements and conditions. 

The Secretary may exercise his 

discretion by rulemaking rather than on 

a case-by-case basis and is doing so 

here. Lopez v. Davis, 531 U.S. 230, 243– 

44 (2001) (quoting American Hosp. 

Ass’n v. NLRB, 499 U.S. 606, 612 (1999)) 

(emphasis added); Yang v. INS, 79 F.3d 

932, 936 (9th Cir.), cert. denied, 519 

U.S. 824 (1996). 

The final rule contains several 

requirements to minimize to the greatest 

reasonable extent public health risks 

and risk of cost to any agency of any 

level of government in the United 

States. The final rule also imposes 

conditions to control and regulate the 

admission and return (to their home 

countries) of beneficiaries of the 

categorical authorization. 

C. Asylees and the Required Waiver of 

Adjustment of Status 

Several commenters objected to the 

requirement of the proposed rule that an 

applicant must waive his right to file for 

an adjustment of status to that of lawful 

permanent resident if he applied for and 

was granted asylum in the United 

States. Some commenters objected also 

to the requirement that an applicant 

must waive his right to file, after 

entering the United States under the 

proposed categorical authorization, an 

application for a change of 

nonimmigrant status or extension of 

stay. 

DHS agrees that asylees obtain a 

special status under INA section 208, 8 

U.S.C. 1158, that, where possible, 

should be recognized consistently. 

Therefore, DHS has modified the 

adjustment of status waiver in the final 

rule to clarify that applicants for the 

categorical authorization will not be 

required to waive the opportunity to 

apply for adjustment of status should 

they be granted asylum after entering 

the United States via the categorical 

process. The final rule will retain the 

required waivers relating to change of 

nonimmigrant status, extension of stay, 

and adjustment of status other than 

through the asylum process. Any alien 

who is unwilling to agree to these 

waivers may apply for temporary 

admission under the existing process of 

8 CFR 212.4(a) which is not conditioned 

on the making of these waivers. 

However, this waiver is for admission as 

a nonimmigrant. These visas are not 

available for aliens who intend to stay 

permanently in the United States as 

immigrants. Aliens seeking permanent 

resident status must apply for 

immigrant visas and fulfill the 

requirement for immigrants set out in 

the INA. 

D. Privacy Rights/Annotation of Visas 

Many commenters expressed concern 

about the privacy of applicants for the 

proposed categorical authorization. 

Primarily, the concern relates to 

whether the alien’s visa (included 

within his or her passport) would be 

annotated to indicate admission under 

the rule’s categorical authorization 

process. These commenters emphasized 

the stigma attached to HIV status and 

the risk that annotation could subject 

these aliens to discrimination. Some of 

these commenters expressed privacy 

concerns relative to a DHS database for 

HIV-positive aliens. 

Some commenters questioned 

whether aliens who receive this visa 

authorization will receive visas that 

identify them as HIV-positive. The visa 

will not be annotated in a manner that 

would allow the public to identify the 

alien as HIV-positive. 

Section 222(f) of the INA, 8 U.S.C. 

1202(f), provides that DOS records 

pertaining to visa issuance or refusal are 

confidential, and shall be used only for 

the formulation, amendment, 

administration, or enforcement of the 

immigration and other laws of the 

United States, with exceptions not 

relevant here. These confidentiality 

provisions serve to protect disclosures 

made as part of an application for a 

nonimmigrant visa by an alien who is 

HIV-positive. Moreover, under the final 

rule’s categorical authorization process, 

unlike the existing process, there is no 

need for DHS to make case-by-case 

determinations on individual 

recommendations from the DOS. DHS 

will necessarily create the same records 

relative to aliens receiving authorization 

for visa issuance under the process (e.g., 

electronic records), as DHS normally 

creates for all aliens with visas who gain 

temporary admission as nonimmigrants. 

DHS will not maintain a separate 

database of aliens who are admitted 

under the categorical authorization 

process. 

DOS scrupulously adheres to the 

statutory requirement regarding the 

confidentiality of information submitted 

during the consular interview process. 

Record information on applicants will 

be maintained by the DOS in 

accordance with confidentiality and 

security requirements, as well as any 

DOS System of Records Notices and 

Privacy Impact Assessments relative to 

any applicable systems covering this 

data collection. 

E. Whether the Rule Is More Stringent 

Than the Existing Process 

Many commenters contended that the 

requirements and conditions of the 

proposed process make it more stringent 

than the existing process. These 

commenters therefore questioned that it 

is a ‘‘streamlined’’ process. Some 

recommended simplifying the process. 

One commenter suggested that DHS not 

make any change to the regulations, 

leaving the existing case-by-case process 

as the sole option. 

The characterization of the categorical 

authorization process under the 

proposed rule and this final rule as 

‘‘streamlined’’ refers to the fact that the 

process, unlike the existing process, 

does not require the alien’s application 

for a visa and temporary admission to be 

submitted to DHS with the consular 

officer’s recommendation. Under the 

existing process, DHS must make a caseby-case evaluation and decision to 

authorize the issuance of the visa and 

the applicant’s temporary admission. 

This step in the process necessarily 

takes time. In FY 2007, the average DHS 

processing time for all consular 

nonimmigrant recommendations (for 

issuance of visas and authorization for 

temporary admission) was 18 days. The 

categorical authorization process under 

this final rule does not require that step, 

and, therefore, the rule is less 

cumbersome and permits consular 

officers to issue visas on the same day 

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Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 58027 

the alien applies for the visa in many 

cases. The process is, therefore, more 

streamlined. 

DHS is authorizing issuance of visas 

and temporary admission on a 

categorical basis only to those aliens 

who meet the rule’s specific 

requirements and conditions. An alien 

may choose to apply for temporary 

admission under the existing case-bycase decision process if he or she 

wishes. 

The existing process also imposes 

conditions that an applicant must meet 

to gain temporary admission, many of 

which are the same or similar to the 

conditions of this final rule’s process. 

The conditions of the existing process 

have been developed through 

adjudication (see Matter of Hranka, 16 

I&N Dec. 491 (BIA 1978)) and several 

instructions issued by the former INS. 

With this final rule, DHS is 

consolidating into one transparent 

source, the conditions and instructions 

applicable to HIV-positive aliens who 

wish to apply for categorical 

authorization for admission to the 

United States; the same conditions that 

have historically governed discretionary 

temporary admission under INA section 

212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A). The 

process implemented under this final 

rule retains the same evidentiary 

requirements as the existing process 

while providing an alternative to the 

case-by-case review by DHS that is 

required under the existing regulation. 

The rule, however, adds restrictions on 

application for extension of stay, change 

of nonimmigrant status, and adjustment 

of status to that of permanent resident 

(other than through asylum). These 

restrictions are necessary to control the 

admission and return of these aliens 

since DHS is not performing a case-bycase review. 

F. Sufficient Insurance and Medication 

Many commenters objected to the 

requirement in the proposed rule (8 CFR 

212.4(f)(2)(v)), that an alien admitted 

under the proposed process for 

categorical authorization have 

possession of or access to an adequate 

supply of antiretroviral drugs (if 

medically appropriate) for the length of 

anticipated stay, and sufficient assets, 

such as medical insurance, to cover any 

medical care that may be necessary 

while in the United States. Some of 

these commenters mentioned that an 

alien may not have insurance or enough 

money to cover a medical event, some 

referring particularly to aliens from poor 

countries. Others questioned how an 

alien could establish adequate assets, 

some referring again to aliens from poor 

or third world countries. Still others 

asked about unanticipated expenses, 

and objected to requiring assets for these 

expenses. Lastly, several commenters 

suggested that this rule is racist because 

HIV-positive populations from 

developing countries are less likely to 

have access to medication and medical 

insurance. 

The requirement to demonstrate 

availability of assets, such as through 

proof of insurance, is a reasonable 

condition meant to ensure that the 

applicant’s short-term visit will not 

cause a financial burden to the 

American public and that there will be 

no cost to any agency of the United 

States without that agency’s prior 

consent. An alien who is likely to 

become a public charge is inadmissible 

to the United States under INA section 

212(a)(4), 8 U.S.C. 1182(a)(4). The 

totality of circumstances must be 

considered in determining whether or 

not a person is likely to become a public 

charge. The requirement that an alien 

possess an adequate supply of 

medication (if medically appropriate), 

or have access to such a supply in the 

United States, would reduce this risk. 

DHS is aware that prescribed 

medication is not always necessary; the 

treatment protocol is determined by the 

patient’s medical service provider. As 

with other medical determinations for 

visa purposes, the appropriateness of 

the alien’s treatment protocol is subject 

to review by DOS’ panel physicians. 

The requirement that the applicant not 

currently be exhibiting symptoms of an 

active, contagious infection with AIDS 

is also relevant to this determination. 

Another consideration in deciding 

whether to exercise discretion favorably 

for an applicant for categorical 

authorization is whether any cost will 

be incurred by any agency of the United 

States (including State and local 

government) without that agency’s prior 

written consent. Thus, applicants who 

do not have sufficient assets to cover the 

cost of their stay will not benefit from 

this new provision. Any written offer by 

a United States agency to provide 

medication and/or funding that is 

adequate for the applicant’s travel will 

be considered a favorable factor. Any 

credible offer from any other financially 

stable source to provide medication 

and/or funding that is adequate for the 

applicant’s travel will also be 

considered a favorable factor. In 

addition, the nature and duration of the 

applicant’s travel plan and his or her 

present health are factors for 

consideration. 

An applicant may establish that 

resources are available to cover medical 

expenses through several means. First, 

some medical facilities are operated by 

State or Federal agencies and, as a 

matter of policy, do not make provisions 

for collecting fees from patients 

accepted for treatment. If an applicant 

establishes, through documentation 

provided by a medical facility, that the 

facility has agreed to provide the 

applicant services without 

reimbursement, or that its free services 

are available to the applicant or to 

similarly situated persons (such as 

nonimmigrant aliens) without specific 

mention of the applicant, the applicant 

is eligible for visa issuance and 

temporary admission even if the facility 

is supported by public funds. 

An applicant may have sufficient 

personal assets to cover anticipated 

treatment. The assets must be available 

in the United States within the time 

frame required for payment by the 

medical facility. Assets can be 

established by commonly available 

documentation. Sponsors (individuals 

or organizations) may offer to cover 

potential medical expenses. Such 

sources should be able to provide 

documentation of intent and capability 

to provide that coverage. Finally, shortterm medical trip insurance may be 

available to cover medical costs that the 

applicant may incur during the 

relatively short (30-day) period of 

admission. In every instance above, the 

applicant must, and should be able to, 

satisfy the consular officer that assets 

will be available within the United 

States to cover anticipated expenses. 

Again, an alien may seek admission 

under the existing process if he is 

unwilling or unable to meet the 

conditions of this final rule’s process. 

The existing process, through the 

consular officer interview and DHS 

review, involves many similar 

requirements relating to the applicant’s 

health and ability to cover expenses. 

Regarding unanticipated medical 

expenses, the likelihood of such 

expenses is judged by the totality of 

circumstances in each applicant’s case. 

Offers of support from individuals and 

organizations, as well as personal assets, 

will be given consideration. 

DHS and DOS will make every effort 

to ensure that these regulations are 

applied consistently without regard to 

inappropriate considerations, such as an 

applicant’s race. 

G. Human Rights Concerns 

Some commenters pointed out that 

the United States is one of only a few 

countries in the world that restricts 

travel for those who are HIV-positive. 

These commenters contended that this 

is a violation of basic human rights (to 

travel) and that DHS and HHS should 

remove HIV infection from the list of 

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58028 Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 

contagious diseases of public health 

significance. 

As discussed in the proposed rule, 

historically, Congress clearly expressed 

its intent that HIV infection be listed as 

a communicable disease of public 

health significance in enacting a statute 

to that effect. Because Public Law 110– 

293 eliminated a mandatory listing from 

the INA, HHS has indicated that it is 

beginning the process of removing HIV 

from the list of communicable diseases 

of public health significance by 

rulemaking. However, while that 

process is developing, through 

rulemaking, DHS is providing a 

streamlined process for these aliens to 

be granted temporary admission into the 

United States as an immediate interim 

option, pending HHS’s plan to remove 

HIV from the list of communicable 

diseases of public significance. 

H. Public Health Reasons for the Rule 

Several commenters contended that 

the proposed process, with its 

requirements and conditions, is not 

supported by medical science, i.e., that 

the need for the limitations in admitting 

HIV-positive aliens is not based on 

sound public health reasons. 

The final rule’s process was 

developed in consultation with HHS’s 

Centers for Disease Control and 

Prevention and National Institutes of 

Health. DHS relied on those 

knowledgeable agencies to provide 

input based on current science. HHS 

continues to list HIV as a communicable 

disease of public health significance and 

DHS must continue to apply the 

statutory provisions regarding 

inadmissibility and discretionary 

authority for temporary admission in a 

manner appropriate to safeguard the 

public from what is still recognized 

under the current statute and regulation 

as a disease of public health 

significance. 

I. Disparate Treatment Applied to 

Contagious Diseases 

A few commenters contended that the 

statutes and regulations pertaining to 

inadmissibility, discretionary 

authorization, and process that limit 

admission to the United States treat HIV 

infection differently than other 

communicable diseases, including 

sexually transmitted diseases (STDs). 

These commenters questioned the 

rationale for this disparate treatment 

and contended that the statute 

discriminated against aliens who are 

HIV-positive. 

When the statute treated HIV 

infection (whether or not it is 

considered a STD) as a communicable 

disease of public health significance 

that disqualifies a carrier of the disease 

from admission to the United States 

(subject to exception), DHS utilized a 

lengthy detailed process for determining 

whether to grant temporary admission. 

Accordingly, DHS proposed an 

alternative, streamlined process for HIVpositive aliens to be granted temporary 

admission into the United States 

pending completion of HHS rulemaking. 

The HHS list does not cover all 

communicable diseases, but HHS is 

charged with the responsibility and has 

the expertise to make distinctions. Some 

diseases are on the list, including some 

STDs (HIV, gonorrhea), while others are 

not. That a given disease is placed on 

the list while others are not is not, by 

itself, evidence of discrimination, nor 

does it show that the disease is 

wrongfully on the list. Other non-STDs 

covered include leprosy (infectious) and 

tuberculosis (active). Other STDs 

covered include chancroid, granuloma 

inguinale, lymphogranuloma vereneum, 

and syphilis (infectious stage). As HIV 

remains on the HHS list pending further 

action, publishing a final rule to put 

into place a streamlined process for 

temporary admission is appropriate. 

J. The 30-day Temporary Admission 

Limit 

A few commenters objected to the 30- 

day limit imposed by the rule for HIVpositive aliens entering the United 

States under the rule’s categorical 

authorization process. These 

commenters contended that this period 

is needlessly short. 

DHS has previously granted blanket 

authorizations under INA section 

212(d)(3)(A), 8 U.S.C. 1182(d)(3)(A), for 

specific, limited purposes, such as to 

permit HIV-positive aliens to attend 

particular events, including the Salt 

Lake City Olympic games, the United 

Nations General Assembly Special 

Session on HIV/AIDS in 2001, various 

Universal Fellowship of Metropolitan 

Community Churches events, and the 

2006 Gay Games in Chicago. Since 1990, 

aliens who are HIV-positive have rarely 

been given blanket authorizations for an 

admission of greater than 10 days. This 

new process will allow admissions for 

up to 30 days, which is in line with 30- 

day admissions often authorized under 

the individualized, case-by-case 

process. 

The final rule describes a new 

(alternative) option for nonimmigrant 

aliens with HIV who wish to enter the 

United States in B–1/B–2 status for 

periods of time that do not exceed 30 

days (but a provision for authorization 

of satisfactory departure in exigent 

circumstances is included in this final 

rule). Moreover, the final rule authorizes 

two applications for admission during 

the 12-month period of the visa validity. 

This reasonable condition of visa 

issuance and admission to the United 

States applies to the majority of 

nonimmigrants traveling to the United 

States (regardless of particular 

nonimmigrant status). For those who 

anticipate traveling in other 

nonimmigrant categories or for longer 

than 30 days, the processes described in 

8 CFR 212.4(a) and (b) remain available. 

Moreover, many of the admissions 

under the existing process for HIVpositive aliens have been more narrowly 

limited to periods corresponding to a 

particular event in the United States, 

such as a seminar or convention. 

Typically, these admissions have been 

for less than 30 days. Admission under 

the existing discretionary authorization 

process also has been more restrictive 

for nonimmigrant aliens seeking to enter 

the United States for general tourism 

purposes. In these respects, the final 

rule’s process is more advantageous to 

HIV-positive aliens seeking to enter the 

United States. 

However, DHS recognizes that 

emergencies do occur and, accordingly, 

has added to this final rule a provision 

for authorizing an additional period or 

periods of stay, as appropriate and as 

deemed necessary by appropriate DHS 

officials, where an alien admitted under 

the final rule’s process experiences 

exigent circumstances that prevent his 

or her departure from the United States. 

This provision is modeled after the 

‘‘satisfactory departure’’ provision 

under the Visa Waiver Program 

regulations. 8 CFR 217.3(a); see 8 CFR 

212.4(f)(5) as adopted in this final rule. 

K. Extension of the Comment Period 

A few commenters requested 

additional time to file comments on the 

proposed rule. 

The comment period was open for 30 

days, and over 700 persons submitted 

comments. The comments submitted 

come from a wide variety of persons and 

appear to cover a wide breadth of 

relevant issues and objections. DHS 

concludes that there was adequate 

opportunity for public participation and 

does not see the need to extend the 

comment period. 

L. Vagueness in Criteria and Medical 

Expertise of Consular Officers 

One commenter stated that the criteria 

of the rule’s categorical authorization 

process that must be met are vague and 

cannot be administered consistently 

because consular officers are not able to 

assess the medical conditions the 

proposal vaguely puts forward. 

Similarly, four commenters suggested 

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Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 58029 

that consular officers are not trained to 

handle medical issues. 

DHS disagrees. DOS has extensive 

experience processing applications 

under the existing HIV authorization 

process. In order to ensure consistent 

application of the criteria, DOS has 

issued specific instructions to consular 

officers regarding how to evaluate 

applications for admission to the United 

States, including medical issues such as 

those in question. In addition, consular 

officers may consult with panel 

physicians to assist with medical issues 

when necessary. 

M. Negative Impact on United States 

Citizens 

One commenter stated that the 

proposal would have a negative effect 

on United States citizens. 

DHS disagrees with this comment. 

This rule only affects nonimmigrant 

alien visitors to the United States and 

has no direct effect on United States 

citizens. 

N. Focus on Illegal Aliens 

One commenter suggested that DHS 

should focus its resources on the illegal 

alien population in the United States. 

DHS is committed to enforcing the 

laws within its purview, including those 

laws that relate to illegal immigration 

and those laws that relate to public 

health concerns. 

O. Aliens Who Are Unaware of Their 

HIV Status 

One commenter suggested that DHS 

should focus its resources on those 

aliens seeking admission to the United 

States who are not yet aware that they 

are HIV-positive. Another commenter 

suggested that DHS focus on education 

and the prevention of AIDS. 

In order to determine whether 

undiagnosed nonimmigrant aliens are 

HIV-positive, a medical examination 

would be required for all nonimmigrant 

visa applicants. DHS is not proposing to 

require such an examination as part of 

this rulemaking. However, the U.S. 

government is committed to preventing 

the global spread of AIDS through 

education and other measures. 

P. Appeal of Decision 

One commenter objected because the 

proposed regulation does not 

specifically provide for appeal of a 

consular officer’s decision. If an alien is 

denied a visa and temporary admission 

under the rule’s process, he or she may 

seek admission under the existing 

process for a case-by-case determination 

of eligibility. 

Q. Future Bar Due to Noncompliance 

One commenter contended that an 

alien who fails to comply with a 

condition of admission under the final 

rule’s process should not be barred from 

seeking authorization under the process 

in the future. 

DHS disagrees and believes that this 

is a reasonable condition to ensure that 

nonimmigrant aliens comply with the 

conditions for admission under this 

rule’s process. In addition, an alien who 

is ineligible for authorization under 

these regulations because he or she has 

previously failed to comply with a 

condition for admission, or for other 

reasons, can still seek authorization 

under the existing case-by-case process. 

This is similar to the restriction of 

previous violators of the Visa Waiver 

Program (VWP) from being able to use 

the VWP program again for admission. 

See INA section 217(a)(7), 8 U.S.C. 

1187(a)(7). In both of these situations, 

the violator may still apply for a visa; 

he or she is only barred from using the 

streamlined process of this regulation or 

VWP, respectively. 

R. Effect on Naturalization and Aliens 

from Visa Waiver Countries 

One commenter expressed concern 

regarding the effect of the proposed 

regulations on a permanent resident’s 

ability to become a United States 

citizen. Several commenters expressed 

concern regarding the effect of the 

proposed regulations on travelers from 

visa waiver countries. 

The rule’s process does not affect the 

eligibility of a permanent resident to 

qualify for naturalization. In addition, 

these regulations do not change 

eligibility for aliens seeking admission 

to the United States under the Visa 

Waiver Program. 

S. Returning Permanent Residents 

One commenter objected that an HIVpositive alien with permanent resident 

status could never travel outside the 

United States because he would not be 

allowed to return. 

An alien with status as a permanent 

resident of the United States who travels 

temporarily outside the United States 

and returns is not considered to be 

applying for admission for immigration 

purposes unless one of the six 

conditions delineated in INA section 

101(a)(13)(C), 8 U.S.C. 1101(a)(13)(C), 

apply. Therefore, absent any of one of 

the six conditions, a permanent resident 

alien who travels outside the United 

States will not be subject to any of the 

grounds of inadmissibility found at INA 

section 212(a), 8 U.S.C. 1182(a). If one 

of the six conditions applies, the 

permanent resident alien is subject to 

any applicable ground of 

inadmissibility. 

IV. Statutory and Regulatory Reviews 

A. Administrative Procedure Act 

The Administrative Procedure Act, 5 

U.S.C. 553(d), generally requires that a 

final rule becomes effective no less than 

30 days from the date of publication. 

Rules that grant or recognize an 

exception or relieve a restriction, 

however, can be made effective 

immediately upon publication. This 

rule does not add new requirements or 

restrictions; instead it codifies existing 

criteria for nonimmigrant aliens infected 

with HIV to obtain a short-term visa 

authorization. This final rule also 

removes certain procedural obstacles in 

the process and provides a more 

streamlined procedure for HIV-positive 

aliens to seek admission into the United 

States. DHS therefore believes that this 

rule relieves current restrictions on the 

admissibility to the United States of 

HIV-positive nonimmigrant aliens. 

Accordingly, this final rule will become 

effective immediately upon publication 

in the Federal Register. 

B. Regulatory Flexibility Act 

DHS has reviewed the final rule in 

accordance with the Regulatory 

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

and, by approving it, certifies that this 

rule will not have a significant 

economic impact on a substantial 

number of small entities. The individual 

non-immigrant aliens to whom this rule 

applies are not small entities as that 

term is defined in 5 U.S.C. 601(6). Thus, 

the RFA does not apply. 

C. Unfunded Mandates Reform Act of 

1995 

The final rule will 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 one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

D. Executive Order 12866 

This rule has been determined to be 

a significant regulatory action under 

Executive Order 12866, section 3(f), 

Regulatory Planning and Review. 

Accordingly, this regulation has been 

submitted to the Office of Management 

and Budget for review. There are no 

new costs to the public associated with 

this rule. This rule does not create any 

new or additional requirements. 

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58030 Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 

E. Executive Order 13132 

The final rule will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, this rule does not have 

sufficient federalism implications to 

warrant the preparation of a federalism 

summary impact statement. 

F. Executive Order 12988 

The final rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988, Civil 

Justice Reform. 

G. Paperwork Reduction Act 

Under the Paperwork Reduction Act 

of 1995, Public Law 104–13, all 

Departments are required to submit to 

OMB, for review and approval, any 

reporting and recordkeeping 

requirements inherent in a rule. This 

rule does not impose any new reporting 

or recordkeeping requirements under 

the Paperwork Reduction Act. 

List of Subjects 

8 CFR Part 100 

Organization and functions 

(Government agencies). 

8 CFR Part 212 

Administrative practice and 

procedure, Aliens, Immigration, 

Passports and visas. 

Amendments to the Regulations 

■ For the reasons stated in the preamble, 

parts 100 and 212 of chapter I of title 8 

of the Code of Federal Regulations (8 

CFR parts 100 and 212) are amended as 

follows: 

PART 100—STATEMENT OF 

ORGANIZATION 

■ 1. The general authority citation for 

part 100 continues to read as follows: 

Authority: 8 U.S.C. 1103; 8 CFR part 2. 

§ 100.7 [Amended] 

■ 2. Section 100.7 is amended by 

removing the citation ‘‘212.4(g)’’ in the 

list of parts and sections and replacing 

it with the citation ‘‘212.4(h)’’. 

PART 212—DOCUMENTARY 

REQUIREMENTS; NONIMMIGRANTS; 

WAIVERS; ADMISSION OF CERTAIN 

INADMISSIBLE ALIENS; PAROLE 

■ 3. The general authority citation for 

part 212 continues to read as follows: 

Authority: 8 U.S.C. 1101 and note, 1102, 

1103, 1182 and note, 1184, 1187, 1223, 1225, 

1226, 1227; 8 U.S.C. 1185 note (section 7209 

of Pub. L. 108–458). 

■ 4. Section 212.4 is amended by: 

■ a. In paragraph (e), removing the 

citation ‘‘212(a)(1)’’ the first time it 

appears and replacing it with 

‘‘212(a)(1)(A)(iii)’’, and removing the 

citation ‘‘212(a)(1) of the Act’’ and 

replacing it with ‘‘212(a)(1)(A)(iii)(I) or 

(II) of the Act due to a mental disorder 

and associated threatening or harmful 

behavior’’; 

■ b. Redesignating paragraphs (f), (g), 

(h), and (i) as paragraphs (g), (h), (i), and 

(j) and adding new paragraph (f) to read 

as follows: 

§ 212.4 Applications for the exercise of 

discretion under section 212(d)(1) and 

212(d)(3). 

* * * * * 

(f) Inadmissibility under section 

212(a)(1) for aliens inadmissible due to 

HIV. 

(1) General. Pursuant to the authority 

in section 212(d)(3)(A)(i) of the Act, any 

alien who is inadmissible under section 

212(a)(1)(A)(i) of the Act due to 

infection with the etiologic agent for 

acquired immune deficiency syndrome 

(HIV infection) may be issued a B–1 

(business visitor) or B–2 (visitor for 

pleasure) nonimmigrant visa by a 

consular officer or the Secretary of State, 

and be authorized for temporary 

admission into the United States for a 

period not to exceed 30 days, subject to 

authorization of an additional period or 

periods under paragraph (f)(5) of this 

section, provided that the authorization 

is granted in accordance with 

paragraphs (f)(2) through (f)(7) of this 

section. Application under this 

paragraph (f) may not be combined with 

any other waiver of inadmissibility. 

(2) Conditions. An alien who is HIVpositive who applies for a 

nonimmigrant visa before a consular 

officer may be issued a B–1 (business 

visitor) or B–2 (visitor for pleasure) 

nonimmigrant visa and admitted to the 

United States for a period not to exceed 

30 days, provided that the applicant 

establishes that: 

(i) The applicant has tested positive 

for HIV; 

(ii) The applicant is not currently 

exhibiting symptoms indicative of an 

active, contagious infection associated 

with acquired immune deficiency 

syndrome; 

(iii) The applicant is aware of, has 

been counseled on, and understands the 

nature, severity, and the 

communicability of his or her medical 

condition; 

(iv) The applicant’s admission poses a 

minimal risk of danger to the public 

health in the United States and poses a 

minimal risk of danger of transmission 

of the infection to any other person in 

the United States; 

(v) The applicant will have in his or 

her possession, or will have access to, 

as medically appropriate, an adequate 

supply of antiretroviral drugs for the 

anticipated stay in the United States and 

possesses sufficient assets, such as 

insurance that is accepted in the United 

States, to cover any medical care that 

the applicant may require in the event 

of illness at any time while in the 

United States; 

(vi) The applicant’s admission will 

not create any cost to the United States, 

or a state or local government, or any 

agency thereof, without the prior 

written consent of the agency; 

(vii) The applicant is seeking 

admission solely for activities that are 

consistent with the B–1 (business 

visitor) or B–2 (visitor for pleasure) 

nonimmigrant classification; 

(viii) The applicant is aware that no 

single admission to the United States 

will be for a period that exceeds 30 days 

(subject to paragraph (f)(5) of this 

section); 

(ix) The applicant is otherwise 

admissible to the United States and no 

other ground of inadmissibility applies; 

(x) The applicant is aware that he or 

she cannot be admitted under section 

217 of the Act (Visa Waiver Program); 

(xi) The applicant is aware that any 

failure to comply with any condition of 

admission set forth under this paragraph 

(f) will thereafter make him or her 

ineligible for authorization under this 

paragraph; and 

(xii) The applicant, for the purpose of 

admission pursuant to authorization 

under this paragraph (f), waives any 

opportunity to apply for an extension of 

nonimmigrant stay (except as provided 

in paragraph (f)(5) of this section), a 

change of nonimmigrant status, or 

adjustment of status to that of 

permanent resident. 

(A) Nothing in this paragraph (f) 

precludes an alien admitted under this 

paragraph (f) from applying for asylum 

pursuant to section 208 of the Act. 

(B) Any alien admitted under this 

paragraph (f) who applies for 

adjustment of status under section 209 

of the Act after being granted asylum 

must establish his or her eligibility to 

adjust status under all applicable 

provisions of the Act and 8 CFR part 

209. Any applicable ground of 

inadmissibility must be waived by 

approval of an appropriate waiver(s) 

under section 209(c) of the Act and 8 

CFR 209.2(b). 

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Federal Register / Vol. 73, No. 194 / Monday, October 6, 2008 / Rules and Regulations 58031 

(C) Nothing within this paragraph (f) 

constitutes a waiver of inadmissibility 

under section 209 of the Act or 8 CFR 

part 209. 

(3) Nonimmigrant visa. A 

nonimmigrant visa issued to the 

applicant for purposes of temporary 

admission under section 212(d)(3)(A)(i) 

of the Act and this paragraph (f) may not 

be valid for more than 12 months or for 

more than two applications for 

admission during the 12-month period. 

The authorized period of stay will be for 

30 calendar days calculated from the 

initial admission under this visa. 

(4) Application at U.S. port. If 

otherwise admissible, a holder of the 

nonimmigrant visa issued under section 

212(d)(3)(A)(i) of the Act and this 

paragraph (f) is authorized to apply for 

admission at a United States port of 

entry at any time during the period of 

validity of the visa in only the B–1 

(business visitor) or B–2 (visitor for 

pleasure) nonimmigrant categories. 

(5) Admission limited; satisfactory 

departure. Notwithstanding any other 

provision of this chapter, no single 

period of admission under section 

212(d)(3)(A)(i) of the Act and this 

paragraph (f) may be authorized for 

more than 30 days; if an emergency 

prevents a nonimmigrant alien admitted 

under this paragraph (f) from departing 

from the United States within his or her 

period of authorized stay, the director 

(or other appropriate official) having 

jurisdiction over the place of the alien’s 

temporary stay may, in his or her 

discretion, grant an additional period 

(or periods) of satisfactory departure, 

each such period not to exceed 30 days. 

If departure is accomplished during that 

period, the alien is to be regarded as 

having satisfactorily accomplished the 

visit without overstaying the allotted 

time. 

(6) Failure to comply. No 

authorization under section 

212(d)(3)(A)(i) of the Act and this 

paragraph (f) may be provided to any 

alien who has previously failed to 

comply with any condition of an 

admission authorized under this 

paragraph. 

(7) Additional limitations. The 

Secretary of Homeland Security or the 

Secretary of State may require 

additional evidence or impose 

additional conditions on granting 

authorization for temporary admissions 

under this paragraph (f) as international 

(or other relevant) conditions may 

indicate. 

(8) Option for case-by-case 

determination. If the applicant does not 

meet the criteria under this paragraph 

(f), or does not wish to agree to the 

conditions for the streamlined 30-day 

visa under this paragraph (f), the 

applicant may elect to utilize the 

process described in either paragraph (a) 

or (b) of this section, as applicable. 

Michael Chertoff, 

Secretary. 

[FR Doc. E8–23287 Filed 10–3–08; 8:45 am] 

BILLING CODE 9111–14–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 263 

[Docket No. R–1333] 

Rules of Practice for Hearings 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Final rule. 

SUMMARY: The Board of Governors of the 

Federal Reserve System (the Board) is 

amending its rules of practice and 

procedure to adjust the maximum 

amount, as set by statute, of each civil 

money penalty (CMP) within its 

jurisdiction to account for inflation. 

This action is required under the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990, as amended by 

the Debt Collection Improvement Act of 

1996. 

DATES: Effective Date: October 12, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Katherine H. Wheatley, Associate 

General Counsel (202/452–3779), or Jodi 

C. Remer, Senior Counsel (202/452– 

6403), Legal Division, Board of 

Governors of the Federal Reserve 

System, 20th and C Streets, NW., 

Washington, DC 20551. For users of 

Telecommunication Device for the Deaf 

(TDD) only, contact 202/263–4869. 

SUPPLEMENTARY INFORMATION: The 

Federal Civil Penalties Inflation 

Adjustment Act of 1990, as amended by 

the Debt Collection Improvement Act of 

1996, 28 U.S.C. 2461 note (FCPIA Act), 

requires each Federal agency to adjust 

each CMP within its jurisdiction by a 

prescribed cost-of-living adjustment at 

least once every four years. This cost-ofliving adjustment is based on the 

formula described in section 5(b) of the 

FCPIA Act. The Board made its last 

adjustment in October 2004 (see 69 FR 

56929). 

The required cost-of-living adjustment 

formula is based on the difference 

between the Consumer Price Index (CPI) 

for June of the year preceding the 

adjustment (in this case, June 2007) and 

the CPI for June of the year when the 

CMP was last set or adjusted. To 

calculate the adjustment, the Board used 

the Department of Labor, Bureau of 

Labor Statistics—All Urban Consumers 

tables, in which the period 1982–84 was 

equal to 100, to get the CPI values. 

The calculations performed for the 

2008 adjustment consisted of four 

categories, depending on the year in 

which the penalty was last set or 

adjusted. For penalties that changed in 

2004, the relevant CPIs were June 2007 

(208.352) and June 2004 (189.7), 

resulting in a CPI increase of 9.8 

percent. For penalties that were last 

changed in 2000, the relevant CPIs were 

June 2007 (208.352) and June 2000 

(172.4), resulting in a CPI increase of 

20.9 percent. For penalties that were last 

changed in 1996, the relevant CPIs were 

June 2007 (208.352) and June 1996 

(156.7), resulting in a CPI increase of 

33.0 percent. One penalty did not exist 

at the time of the last adjustment and 

became effective in December 2005. For 

that penalty, the relevant CPIs were June 

2007 (208.352) and June 2005 (194.5), 

resulting in a CPI increase of 7.1 

percent. 

Section 5 of the FCPIA Act provides 

that the adjustment amount must be 

rounded before adding it to the existing 

penalty amount. The rounding 

provision depends on the size of the 

penalty being adjusted. For example, if 

the penalty is greater than $100 but less 

than or equal to $1,000, the increase is 

rounded to the nearest $100; if it is 

greater than $1,000 but less than or 

equal to $10,000, the increase is 

rounded to the nearest $1,000. Because 

of this rounding rule, six penalty 

amounts are not changing at this time. 

For example, the penalty under 12 

U.S.C. 3909(d) prior to the 2008 

adjustment was $1,100. As this penalty 

was last changed in 1996, the 33 percent 

adjustment would be $363. Rounding 

that increase to the nearest $1,000 

results in an increase of $0. The 

penalties that are not adjusted at this 

time because of this rounding formula 

will be subject to adjustment at the next 

adjustment cycle to take account of the 

entire period between the time of their 

last adjustment (1996, 2000, or 2004) 

and the next adjustment date. These 

unadjusted penalties include the 

inadvertently late or misleading reports 

under 12 U.S.C. 324; 12 U.S.C. 1832(c); 

Tier I penalty of 12 U.S.C. 1847(d), 

3110(c); 12 U.S.C. 334, 374a, 1884; 12 

U.S.C. 3909(d); and 42 U.S.C. 

4012(a)(f)(5). 

In accordance with section 6 of the 

FCPIA Act, the increased penalties set 

forth in this amendment apply only to 

violations that occur after the date the 

increase takes effect. 

Public Law 104–134, title III, 

§ 31001(s)(2), April 21, 1996, 110 Stat. 

1321–272 amended the FCPIA Act and 

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