State Dept. Issued Final Rule On Exchange Visitor Program Fees and Charges

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[Federal Register: February 25, 2011 (Volume 76, Number 38)]
[Rules and Regulations]              
[Page 10498-10500]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25fe11-7]                        

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DEPARTMENT OF STATE

22 CFR Part 62

[Public Notice: 7346]
RIN 1400-AC67

Exchange Visitor Program--Fees and Charges

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State is amending its regulations regarding
fees and charges for Exchange Visitor Program services. The fees permit
the Department to recoup the cost of providing such Exchange Visitor
Program services.

DATES: Effective Date: This rule is effective 30 days from February 25,
2011.

FOR FURTHER INFORMATION CONTACT: Stanley S. Colvin, Deputy Assistant
Secretary for Private Sector Exchange, U.S. Department of State, SA-5,
Floor 5, 2200 C Street, NW., Washington, DC 20522, 202-632-2805, or e-
mail at jexchanges@state.gov.

SUPPLEMENTARY INFORMATION: The Department published a proposed rule,
Public Notice 7077 at 75 FR 60674-60679, October 1, 2010, with a
request for comments, amending Sec.  62.17 (``Fees and Charges'')
containing all of the fees and charges for Exchange Visitor Program
services. As explained in the proposed rule, the Department is
increasing user fees charged for Exchange Visitor Program services in
order to recoup the full cost of such services which are requested and
performed for the benefit of foreign nationals or U.S. corporate
entities. These costs were calculated by an independent certified
public accounting firm in full compliance with the Office of Management
and Budget directives regarding such user fee calculations as set forth
in OMB Circular A-25.
    The Department received three comments and is now promulgating a
final rule with no changes from the proposed rule. Thus, the fee
charged to foreign nationals for a request for individual program
services, such as change of program category, program extensions and
reinstatements, will decrease to $233.00. The fee charged to U.S.
corporate entities for requests for program designation, redesignation
and amendments to program designation will increase to $2,700.00 in
order to recoup the full cost of such services.

Comment Analysis

    The Department received three comments. One comment suggested that
the Exchange Visitor Program be closed and that the fees be increased
to $10,991 for application fees and $5,945 for individual program
services. The Department rejected this comment as there is no basis or
justification for such a proposal. The comment was not responsive to
the proposed rule concepts. Another comment was from an academic
institution and opined that a 54% increase in fees was such a financial
burden on academic institutions that the redesignation period should
also be increased. As no other academic institutions presented this
view, we find that this comment does not represent the views of the
higher academic community or its ability to pay this bi-annual
redesignation fee. A further comment was from a private sector
organization that combined comments to both opposition of the final
secondary school student rule and the proposed fee rule and does not
believe that the increase in fees will help the Department with its
oversight responsibilities. This comment was not responsive to the
proposed rule which discussed neither secondary school student
exchanges nor oversight initiatives or duties of designated program
sponsors.

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 rule is to set the fees that will fund the
services provided by the Exchange Visitor Program Office of
Designation, which provides services to 1,226 sponsor organizations and
350,000 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 often 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 rule is exempt
from the rulemaking provisions of the APA, the Department published
this rule as a proposed rule and solicited comments. This was without
prejudice to its determination that the Exchange Visitor Program is a
foreign affairs function.

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, and that no other law
requires the Department to give notice of proposed rulemaking.
Accordingly the Department believes that this rule is not subject to
the requirements of the Regulatory Flexibility Act (5 U.S.C. 601, et
seq.) or Executive Order 13272, section 3(b).
    Nevertheless, the Department has examined the potential impact of
this rule on small entities. Entities conducting student exchange
programs are classified under code number 6117.10 of the North American
Industry Classification System. Some 5,573 for-profit and tax-exempt
entities are listed as falling within this classification. Of this
total number of so-classified entities, 1,226 are designated by the
Department of State as sponsors of an exchange visitor program,
designated as such to further the public diplomacy mission of the
Department and U.S. Government through the conduct of people-to-people
exchange visitor programs. Of these 1,226 Department designated
entities, 933 are academic institutions and 293 are for-profit or tax-
exempt entities. Of the 933 academic institutions designated by the
Department, none are believed to meet the definition of small entity
for Regulatory Flexibility Act analysis purposes. The RFA utilizes the
SBA's definition of ``small entities'' for educational institutions,
which are for-profit entities that have annual revenues of less than $7
million. The RFA defines ``small organizations'' as any not-for-profit
educational institution that is independently owned or operated and not
dominant in its field. Of the 293 for-profit or tax-exempt entities
designated by the Department, 131 have annual revenues of less than $7
million, thereby falling within the analysis purview of the Regulatory
Flexibility Act. Although, as stated above, the Department is of the
opinion that the Exchange Visitor Program is a foreign affairs function
of the United States Government and, as such, that this rule is exempt
from the rulemaking provisions of section 553 of the APA, given the
projected costs (discussed below) to the approximately 131 small
entities designated to conduct exchange visitor programs, the
Department has determined that this rule will not have a significant
economic impact on a substantial number of small entities. The annual
additional cost to a small entity is $476.00.

Unfunded Mandates Reform Act of 1995

    This 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 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 requirements of Section 5 of Executive Order 13175 do
not apply to this rulemaking.

Small Business Regulatory Enforcement Fairness Act of 1996

    This final rule is not a major rule as defined by 5 U.S.C. 804 for
the purposes of Congressional review of agency rulemaking under the
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
801-808). 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 foreign-based companies in domestic and
export markets.

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 exempt from the requirements of Executive Order 12866. However, the
Department has nevertheless reviewed this regulation 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 final rule, and
finds that educational and cultural exchanges are both the cornerstone
of U.S. public diplomacy and an integral component of American foreign
policy. Though the benefits of these exchanges to the United States and
its people cannot be monetized, the Department is nonetheless of the
opinion that these benefits outweigh the costs associated with this
rule. The Department projects the cost to the government of providing
Exchange Visitor Program services to be $3.4 million annually. This
rule will provide an estimated $3.4 million annually that will support
the operations of the Department's Office of Designation, including
funds for designation and redesignation, for individual exchange
participant services, and the appropriate share of costs for regulatory
review and development, outreach, and general program administration.
These costs are divided among the 1,226 designated sponsors who will
account for $2.7 million of the total $6.8 million over the next two
years, with foreign national exchange participants requesting
individual-based program services accounting for the remaining $4.1
million. The actual increase in annual costs per designated sponsor is
$462 which represents a total annual increase of $378,302. The cost to
foreign national exchange participants requesting program services has
been decreased by $13 per transaction. Thus, the Department of State
has identified $3.4 million in economic transfers associated with this
rule. The Department has not identified any monetized benefits or
costs, though it believes that the revenue generated by these fees and
charges will enable the Department to administer an effective program
and is essential to continuing to support and strengthen the United
States' foreign policy goal of promoting mutual understanding between
the people of the United States and other countries.

Executive Order 12988

    The Department has reviewed this regulation in light of sections
3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity,
minimize

litigation, establish clear legal standards, and reduce burden.

Executive Orders 12372 and 13132

    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
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 regulation.

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 is revised 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, section 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  [Amended]

    (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)--$2,700.00.
    (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)--$233.00.

    Dated: February 22, 2011.
Stanley S. Colvin,
Deputy Assistant Secretary for Private Sector Exchange, Bureau of
Educational and Cultural Affairs, Department of State.
[FR Doc. 2011-4276 Filed 2-24-11; 8:45 am]
BILLING CODE 4710-05-P

Agency: