DOS Publishes Final Rule On Exchange Visitor Program Fees and Charges

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[Federal Register Volume 78, Number 93 (Tuesday, May 14, 2013)]
[Rules and Regulations]
[Pages 28137-28139]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-11484]
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DEPARTMENT OF STATE

22 CFR Part 62

RIN 1400-AD28
[Public Notice 8322]

Exchange Visitor Program--Fees and Charges

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The U.S. Department of State (Department) is revising
regulations to increase the Application Fee for Sponsor Designation or
Redesignation and the Administrative Fee for Exchange Visitor (J-1 Visa
Holder) Benefits assessed for providing Exchange Visitor Program
services, in order to recoup the costs incurred by the Department's
Bureau of Educational and Cultural Affairs associated with operating
the Exchange Visitor Program.

DATES: Effective Date: This rule is effective June 13, 2013.

FOR FURTHER INFORMATION CONTACT: Robin J. Lerner, Deputy Assistant
Secretary for Private Sector Exchange, U.S. Department of State, SA-5,
Floor 5, 2200 C Street NW., Washington, DC 20522, 202-632-9290, or
email at JExchanges@state.gov.

SUPPLEMENTARY INFORMATION: The Department published a proposed rule on
January 30, 2013 (RIN 1400-AD28; 78 FR 6263), with a request for
comments, to amend 22 CFR 62.17 (``Fees and Charges'') to increase fees
to recover the costs of administrative processing of requests for
program designation or redesignation, and certain services for exchange
visitor benefits. These costs were calculated by an independent,
certified public accounting firm following the guidelines set forth in
Office of Management and Budget (OMB) Circular A-25 regarding such fee
calculation.
The Department received thirteen comments and is now promulgating a
final rule with no changes from the proposed rule. Thus, the
application fee charged to U.S. corporate entities will increase to
$3,982.00 for program designation and redesignation. The individual
program services fee paid by foreign nationals will increase to $367.00
for services such as change of program category, program extensions and
reinstatements.

Comment Analysis

The Department received thirteen comments. One comment suggested
that the Exchange Visitor Program be shut down and the other, from a
foreign national, requested assistance on visas and travel. These
comments were not responsive to the proposed rule.
Three comments represented the academic community and supported the
proposed rule. One commenter stated that the fees should be adopted and
believes that the Department cannot prevent abuses to the program if
the Office of Designation limits itself, as it does now, to some 13
staff members monitoring more than 1,400 separate and distinct
sponsors. Two comments did not object to the increases, but requested
that sufficient time be allowed so that academic institutions could
properly budget for the 47% increase in the application fee. The
Department's fee schedule is reviewed and implemented on a two-year
cycle. Delaying the fee increases for all sponsors is not feasible.
In addition, one of the three commenters who expressed support for
the proposed rule requested clarification as to whether designation
fees paid by private sector program sponsors were also meant to cover
the cost of administering U.S. Government exchange programs.
Designation fees paid by private sector program sponsors do not
currently fund the administration of U.S. Government exchange programs,
and the Department does not anticipate that private sector programs
would cover the cost of administering such exchange programs in the
future.
A total of eight comments oppose the proposed increase in fees. One
comment inquired about the purpose of increasing the application fee
since the Department has imposed a moratorium on new sponsor
applications for the Summer Work Travel category of the Exchange
Visitor Program. Once the Department has completed the comprehensive
review of the Summer Work Travel category, it is anticipated that the
moratorium will be lifted.
Another comment opposed the increase and stated that the opposition
was ``due to the Department's failure to adequately demonstrate its
best use of resources and lack of timely and knowledgeable response
time to questions and application requests.'' According to this
commenter, the requirement to provide increased oversight of the
Exchange Visitor Program over the last two years has diverted resources
away from the administrative processing of stakeholder requests. The
increase in fees is designed to facilitate the hiring of additional
staff to manage the administrative workload in a timely fashion,
increase the Office of Designation's efficiency and enhance the
office's customer service. Five

commenters opposed the proposed administrative fee and noted the impact
it will have on au pair participants wishing to extend their program
beyond the twelve-month maximum duration. The Department designed the
administrative fee to recoup the cost to the Department of processing
the action for the participant, regardless of category.
Finally, one commenter opposed the fee structure and questioned
whether applications for designation and redesignation undergo the same
level of review. The commenting party also noted that both large and
small sponsors are charged the same application fee, and suggested that
the fee structure be based on program size. The Department recognizes
that, in general, processing designation and redesignation applications
does not require the same level of review. The Department also
recognizes that there is an on-going relationship between the parties
once a sponsor becomes designated. This relationship involves program
monitoring, responding to sponsor inquiries, processing of requests
whose costs are not recouped through administrative fees, and other
activities, all of which must be funded.
Program size has minimal impact on the level of effort associated
with processing redesignation applications, since the Office of
Designation has to review and assess the same factors and the same
documents.

Regulatory Findings

Administrative Procedure Act

The Department of State is of the opinion that the Exchange Visitor
Program is a foreign affairs function of the U.S. Government and that
rules implementing this function are exempt from section 553
(Rulemaking) and section 554 (Adjudications) of the Administrative
Procedure Act (APA). The U.S. Government supervises programs that
invite foreign nationals to come to the United States to participate in
exchange visitor programs, either directly or through private sector
program sponsors or grantees. When problems occur, the U.S. Government
often has been, and likely will be, held accountable by foreign
governments for the treatment of their nationals, regardless of who is
responsible for the problems.
The purpose of this rulemaking is to set the fees that will fund
services provided by the Exchange Visitor Program Office of Designation
to more than 1,400 sponsor organizations and 300,000 Exchange Visitor
Program participants. These services include oversight and compliance
with program requirements, as well as the monitoring of programs to
ensure the health, safety and well-being of foreign nationals entering
the United States (many of these exchange programs and participants are
funded by the U.S. Government) under the aegis of the Exchange Visitor
Program and in furtherance of its foreign relations mission. The
Department of State represents that failure to protect the health and
well-being of these foreign nationals and their appropriate placement
with reputable organizations will have direct and substantial adverse
effects on the foreign affairs of the United States.
Although the Department is of the opinion that this rulemaking is
exempt from the rulemaking provisions of the APA, the Department
published this rulemaking as an NPRM and solicited comments, without
prejudice to its determination that this rulemaking concerns a foreign
affairs function of the Department.

Regulatory Flexibility Act/Executive Order 13272: Small Business

As discussed above, the Department believes that this final rule is
exempt from the provisions of 5 U.S.C. 553. This final rule is not
subject to the requirements of the Regulatory Flexibility Act (5 U.S.C.
601, et seq.) or Executive Order 13272.

Unfunded Mandates Reform Act of 1995

This rulemaking will not result in the expenditure by State, local
and tribal governments, in the aggregate, or by the private sector, of
$100 million 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.

Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments

The Department has determined that this rulemaking will not have
tribal implications, will not impose substantial direct compliance
costs on Indian tribal governments, and will not pre-empt tribal law.
Accordingly, the provisions of Executive Order 13175 do not apply to
this rulemaking.

Small Business Regulatory Enforcement Fairness Act of 1996

Based on the criteria of 5 U.S.C. 804(2), the Department does not
believe this rulemaking will have an annual effect on the economy of
$100,000,000 or more. The Department estimates that approximately 60
government, academic and private sector programs apply for designation
annually, and approximately 700 of the currently-designated sponsors
apply for redesignation annually. Therefore, 760 organizations will be
required to pay the application fee, which amounts to a total of
$3,026,320, an increase of $974,320 from the current application fee of
$2700 ($3,026,320-$2,052,000). This is the only monetary effect on the
economy that the Department is able to identify.
A rule is also considered ``major'' if it will result in a major
increase in costs or prices for consumers, individual industries,
Federal, state or local government agencies, or geographic regions. The
Department does not anticipate that this rule will have any effect at
all on those categories. Finally, a rule is considered major if it will
have significant adverse effects on competition, employment,
investment, productivity, innovation, or on the ability of United
States-based enterprises to compete with foreign-based enterprises in
domestic and foreign markets. The Department knows of no adverse
effects, much less significant adverse effects, on any of those
categories.
This rulemaking has been found not to be a major rule within the
meaning of 5 U.S.C. 804.

Executive Order 13563 and Executive Order 12866

As discussed above, the Department is of the opinion that the
Exchange Visitor Program is a foreign affairs function of the United
States Government and that rules governing the conduct of this function
are generally exempt from the requirements of Executive Order 12866.
However, the Department has nevertheless reviewed this final rule to
ensure its consistency with the regulatory philosophy and principles
set forth in that Executive Order.
The Department has examined the economic benefits, costs, and
transfers associated with this rule, and declares that educational and
cultural exchanges are both cornerstones of U.S. public diplomacy and
an integral component of U.S. foreign policy. The benefits of these
exchanges to the United States and its people are invaluable and cannot
be monetized; in the same way, even one exchange visitor having a bad
experience or, worse, being mistreated, will result in embarrassment
and incalculable harm to the foreign policy of the United States.
Therefore, the Department is of the opinion that the benefits of this
rulemaking outweigh its costs.

Executive Order 12988

The Department has reviewed this rulemaking in light of Executive
Order 12988 to eliminate ambiguity, minimize litigation, establish
clear legal standards, and reduce burden.

Executive Orders 12372 and Executive Order 13132

This rulemaking 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 Executive
Order 13132, it is determined that this rulemaking does not have
sufficient federalism implications to require consultations or warrant
the preparation of a federalism summary impact statement. The
regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this rulemaking.

Paperwork Reduction Act

The information collection requirements contained in this
rulemaking are pursuant to the Paperwork Reduction Act, 44 U.S.C.
Chapter 35 and OMB Control Number 1405-0147, expiring on November 30,
2013.

List of Subjects in 22 CFR Part 62

Cultural exchange program.

Accordingly, 22 CFR part 62 is amended as follows:

PART 62--EXCHANGE VISITOR PROGRAM

0
1. The authority citation for part 62 continues to read as follows:

Authority: 8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C.
1431-1442, 2451 et seq.; Foreign Affairs Reform and Restructuring
Act of 1998, Pub. L. 105-277, Div. G, 112 Stat. 2681 et seq.;
Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O.
12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168; the Illegal
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of
1996, Pub. L. 104-208, Div. C, 110 Stat. 3009-546, as amended;
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (USA
PATRIOT ACT), Pub. L. 107-56, Sec. 416, 115 Stat. 354; and the
Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L.
107-173, 116 Stat. 543.

0
2. Section 62.17 is revised to read as follows:

Sec. 62.17 Fees and charges.

(a) Remittances. Fees prescribed within the framework of 31 U.S.C.
9701 must be submitted as directed by the Department and must be in the
amount prescribed by law or regulation.
(b) Amounts of fees. The following fees are prescribed.
(1) For filing an application for program designation and/or
redesignation (Form DS-3036)--$3,982.00.
(2) For filing an application for exchange visitor status changes
(i.e., extension beyond the maximum duration, change of category,
reinstatement, reinstatement-update SEVIS status, ECFMG sponsorship
authorization, and permission to issue)--$367.00.

Dated: May 8, 2013.
Robin J. Lerner,
Deputy Assistant Secretary for Private Sector Exchange, Bureau of
Educational and Cultural Affairs, Department of State.
[FR Doc. 2013-11484 Filed 5-13-13; 8:45 am]
BILLING CODE 4710-05-P

Agency: