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Federal Register / Vol. 86, No. 33 / Monday, February 22, 2021 / Rules and Regulations within a foreign government, such as heads of states, cabinet ministers, ambassadors and public ministers.
Further, the Department exercises its statutory discretion when issuing official type visas. For example, aliens who are not eligible to receive a diplomatic type visa and are classifiable under INA 101a15A, 8 U.S.C.
1101a15A, are eligible to received official type visas. Aliens classifiable under INA 101a15A, 8 U.S.C.
1101a15A, must be accepted by the Secretary of State. 8 U.S.C.
1101a15Ai and ii. Thus, the Secretarys discretion in promulgating regulations as they relate to issuing diplomatic type and official type visas involves. . .a foreign affairs function of the United States. 5 U.S.C. 553a1.
In Raoof v. Sullivan, the court found that the Department properly exercised the foreign affairs exception under the APA when it did not engage in formal rule-making for the J1 nonimmigrant visa two-year foreign residence requirement because the the exchange visitor programwith its statutory mandate for international interaction through nonimmigrantscertainly relates to foreign affairs and diplomatic duties conferred upon the Secretary of State and the State Department. 315
F.Supp.3d 34, 44 D.D.C. 2018. This rule, which codifies Department policy regarding which aliens are treated as diplomats in the issuance of a visa, directly relates to the Departments authority to carry out diplomatic duties and inherently involves the Secretary of States foreign affairs functions.
This rule clearly and directly impacts foreign affairs functions of the United States and implicates matters of diplomacy directly. City of N.Y. v.
Permanent Mission of India to the U.N., 618 F.3d 172, 201 2d Cir. 2010. The foreign-affairs exception covers this final rule, as it is linked intimately with the Governments overall political agenda concerning relations with another country. Am. Assn of Exporters & Importers-Textile & Apparel Grp. v. United States, 751 F.2d 1239, 1249 Fed. Cir. 1985. Opening this process to public comment would most directly affect a particular group of individuals, foreign government officials and officers of international organizations, who were eligible for diplomatic type or official type visas under the prior rule and who may still qualify for diplomatic type or official type visas, regardless of their purpose of travel or visa classification. Eligibility for such visa types, which is the subject of this rule, may determine whether the applicant is required to go to a U.S.

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Embassy or Consulate for a visa interview, and potentially be eligible for certain courtesies at the port of entry to the United States. The rule discusses standards to be applied by consular officers, which will determine the type of visa but not the visa classification the visa applicant will receive. Because the above-referenced stakes are very significant to individuals who already receive any courtesies attached to the visa type, public comment on eligibility to receive a diplomatic type or official type visa would provoke immediate and strident response from the diplomatic community, in particular certain high ranking foreign government officials that may be important to the United States ability to achieve bilateral objectives. Accordingly, this situation is comparable to the situation in Am.
Assn of Exps. & Imps.Textile &
Apparel Grp. v. United States, 751 F.2d 1239, 1249 Fed. Cir. 1985 ruling that stricter import restrictions would provoke immediate response from foreign manufacturers. Therefore, this regulation is exempt from 5 U.S.C. 553
because it involves a foreign affairs function of the United States.
Regulatory Flexibility Act/Executive Order 13272: Small Business Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth by the Regulatory Flexibility Act 5 U.S.C. 603 and 604.
Nonetheless, consistent with the Regulatory Flexibility Act 5 U.S.C.
605b, the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. Therefore, a regulatory flexibility analysis under the Regulatory Flexibility Act, as amended, is not required.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995, 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.
Congressional Review Act This rule is not a major rule as defined in 5 U.S.C. 804. The Department is aware of no monetary effect on the economy that would directly result from this rulemaking, nor will there be any major increase in costs or prices; or
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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 Orders 12866 and 13563
Executive Orders 13563 and 12866
direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits including potential economic, environmental, public health and safety effects, distributed impacts, and equity.
This rule will not affect the economy by $100 million or more annually. These Executive Orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has examined this rule in light of Executive Order 13563, and has determined that the rulemaking is consistent with the guidance therein.
The Department has reviewed this rulemaking to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. The Office of Information and Regulatory Affairs has determined that this rulemaking is a significant rulemaking under Executive Order 12866 and, consequently, reviewed this rulemaking.
The Department notes that this regulatory change only impacts the visa type regular, diplomatic or official; it does not affect visa classification which is based on purpose of travel. Domestic workers of foreign government officials and international organization officers aliens classifiable A3 or G5 are the only category of individuals being removed from the categories of individuals eligible for official type visas under this regulation. Such individuals do not typically have a diplomatic or official passport; they travel on regular passports. Although qualification for an official type visa may provide some courtesies such as exemption from visa fees, such courtesies are already attached to the A3
and G5 domestic worker visa classifications, so they are not losing a benefit. Moreover, even though official type visa applicants applying with an official passport may have their interview waived, the Trafficking Victims Protections Reauthorization Act of 2003 TVPRA, Public Law 108193, requires an interview for all A3 and G5
nonimmigrants so such courtesy may not be extended to an A3 or G5
nonimmigrant.

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