Federal Register / Vol. 73, No. 203 / Monday, October 20, 2008 / Rules and Regulations 62197 

7 that established the Board of 

Appellate Review (L/BAR) and revising 

§ 50.51 to provide for an alternative 

method of review of loss of nationality 

determinations on a discretionary basis. 

The rule was discussed in detail in 

Public Notice 6298, as were the 

Department’s reasons for making the 

changes to the regulations. There were 

no comments to the interim final rule 

published July 18, 2008. The 

Department is now promulgating a final 

rule with no changes. 

Regulatory Findings 

Administrative Procedure Act 

The Department published this rule as 

an interim final rule on July 18, 2008, 

with 60 days for post-promulgation 

comment, in accordance with the 

exemption contained in 5 U.S.C. 

553(a)(2) for matters relating to agency 

management or personnel. 

Regulatory Flexibility Act 

Since this action is exempt from the 

notice and comment procedures 

contained in 5 U.S.C. 553, and no other 

statute mandates such procedures, no 

analysis under the Regulatory 

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

required. However, these changes to the 

regulations are hereby certified as not 

expected to have a significant impact on 

a substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act, 5 U.S.C. 601–612, and 

Executive Order 13272, section 3(b). 

Unfunded Mandates Reform Act of 1995 

This 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 

(adjusted annually for inflation) in any 

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. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement Act of 

1996. 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 significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

import markets. 

Executive Order 12866 

The Department does not consider 

this rule to be a ‘‘significant regulatory 

action’’ within the scope of section 

3(f)(1) of Executive Order 12866. In 

addition, the Department is exempt 

from Executive Order 12866 except to 

the extent that it is promulgating 

regulations in conjunction with a 

domestic agency that are significant 

regulatory actions. The Department has 

nevertheless reviewed the regulation to 

ensure its consistency with the 

regulatory philosophy and principles set 

forth in that Executive Order. 

Executive Order 12988—Civil Justice 

Reform 

The Department has reviewed this 

regulation 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. 

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 on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

rule does not have significant federalism 

implications warranting the application 

of Executive Orders No. 12372 and No. 

13132. 

National Environmental Policy Act 

The Department has analyzed this 

regulation for the purpose of the 

National Environmental Policy Act of 

1969 (42 U.S.C. 4321 through 4327) and 

has determined that it will not have any 

effect on the quality of the environment. 

The Paperwork Reduction Act of 1995 

This rule does not impose any new 

reporting or recordkeeping requirements 

subject to the Paperwork Reduction Act 

of 1995, 44 U.S.C. 3501, et seq. 

List of Subjects 

22 CFR Part 7 

Board of Appellate Review. 

22 CFR Part 50 

Citizenship, Nationality, Loss of 

Nationality. 

■ Accordingly, the interim rule 

amending 22 CFR parts 7 and 50 

published at 73 FR 41256, July 18, 2008 

is adopted as final without change. 

Dated: October 7, 2008. 

Janice L. Jacobs, 

Assistant Secretary of State, Bureau of 

Consular Affairs, Department of State. 

[FR Doc. E8–24472 Filed 10–17–08; 8:45 am] 

BILLING CODE 4710–06–P 

DEPARTMENT OF STATE 

22 CFR Part 40 

[Public Notice 6395] 

RIN 1400–AB68 

Uncertified Foreign Health-Care 

Workers 

AGENCY: Department of State. 

ACTION: Final rule. 

SUMMARY: This rule adopts as final 

without change the Department’s 

interim rule published on December 17, 

2002, at 67 FR 77158. The rule changes 

the requirements pertaining to the 

issuance of visas to certain health care 

workers. Certain foreign health care 

workers now need to present certificates 

establishing competency in a specific 

health care field. Certification is issued 

by the Commission on Graduates of 

Foreign Nursing Schools (CGFNS) or 

other credentialing organizations that 

have been approved by the Secretary of 

Homeland Security (DHS) in 

consultation with the Secretary of 

Health and Human Services (HHS). This 

rule facilitates greater uniformity 

between the regulations of DHS and the 

Department of State. 

DATES: Effective Date: Effective October 

20, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Penafrancia D. Salas, Legislation and 

Regulations Division, Visa Services, 

Department of State, Washington, DC 

20520–0106. Phone: 202–663–1202. 

E-mail: (salaspd@state.gov). 

SUPPLEMENTARY INFORMATION: 

What Is The Background of This Rule? 

An alien who seeks to enter the 

United States for the purpose of 

performing labor as a health care 

worker, other than as a physician, is 

ineligible for visa issuance and is 

inadmissible to the United States unless 

the alien presents to the consular officer 

a certificate from the CGFNS or a 

certificate from an equivalent 

independent credentialing organization 

approved by DHS in consultation with 

HHS that indicates the following: 

(a) The alien’s education, training, 

license, and experience: 

1. Meet all applicable statutory and 

regulatory requirements for admission 


dwashington3 on PRODPC61 with RULES
62198 Federal Register / Vol. 73, No. 203 / Monday, October 20, 2008 / Rules and Regulations 

into the United States under the 

specified visa; 

2. Are comparable with those required 

for an American health care worker of 

the same type; 

3. Are authentic; and, 

4. In the case of a license is 

unencumbered (not burdened or 

affected); 

(b) The alien has the level of 

competence in oral and written English 

considered by the Secretary of HHS, in 

consultation with the Secretary of 

Education, to be appropriate for the 

health care work in which the alien will 

be engaged. HHS’s finding is to be based 

on an established score on one or more 

nationally recognized, commercially 

available, standardized assessments; 

and, 

(c) If a majority of states licensing the 

profession in which the alien intends to 

work recognize a test predicting an 

applicant’s success on the profession’s 

licensing or certification examination, 

the alien has passed such a test, or has 

passed the certification examination. 

The Immigration and Nationality Act 

section 212(r) created an alternative 

certification process for certain aliens 

seeking to enter the United States to 

perform nursing services. In general, 

such procedures apply to those aliens 

who already possess a valid, 

unrestricted, authentic and 

unencumbered license as a nurse in a 

state where the alien intends to be 

employed and who received their 

nursing training in a country where the 

quality of education and the English 

proficiency of nursing graduates have 

been recognized by the CGFNS as 

meeting its standards. 

On July 25, 2003, the Department of 

Homeland Security published in the 

Federal Register at 68 FR 43901 its final 

rule establishing at 8 CFR 212.15 the 

regulations governing the certification 

process for aliens seeking to enter to 

provide labor as health care providers. 

Aliens in covered health care 

occupations (with the exception of 

aliens who, under 8 CFR 212.15(b) are 

not subject to the certification 

requirement of 212(a)(5)(C) and 212(r) of 

the INA (8 U.S.C. 1182(a)(5)(C) and 8 

U.S.C. 1182(r) respectively, and the 

Department of Homeland Security 

Regulations at 8 CFR 212.15) specified 

at 8 CFR 212.15(c)) are inadmissible. 

Comments 

Were Comments Solicited on This Rule? 

Yes, comments were solicited. 

Although the Department received four 

comments in response to this rule, the 

comments raised issues regarding the 

hardship on the individual commenters 

that the statutory requirements imposed. 

For example, several comments focused 

on the shortage of nurses in the United 

States and the need for foreign nurses to 

make up the shortage. Other comments 

focused on issues relating to the 

licensure of nurses. 

Regulatory Findings 

Administrative Procedure Act 

The Department’s implementation of 

the interim rule was based upon the 

‘‘good cause’’ exception found at 5 

U.S.C. 553(b)(B). Section 553(b) of the 

APA authorizes agencies to dispense 

with certain notice procedures for rules 

when they are ‘‘impracticable, 

unnecessary, or contrary to public 

interest.’’ Nevertheless, the Department 

solicited public comments. This rule 

makes final an amendment to the 

regulation that implemented a 

legislative mandate that codified current 

practices. 

Regulatory Flexibility Act/Executive 

Order 13272: Small Business 

The Department of State, pursuant to 

the Regulatory Flexibility Act (5 U.S.C. 

605(b), has assessed this regulation and, 

by approving it, certifies that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. 

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 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

companies to compete with foreignbased 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 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 any new 

reporting or recordkeeping requirements 

subject to the Paperwork Reduction Act, 

44 U.S.C. Chapter 35. 

List of Subjects in 22 CFR Part 40 

Aliens, Nonimmigrants, Immigrants, 

Documentation, Passports and Visas. 

■ Accordingly, the interim rule 

amending 22 CFR part 40 published at 

67 FR 77158, December 17, 2002 is 

adopted as final without change. 

Dated: October 6, 2008. 

Janice L. Jacobs, 

Assistant Secretary for Consular Affairs 

Department of State. 

[FR Doc. E8–24474 Filed 10–17–08; 8:45 am] 

BILLING CODE 4710–06–P 


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