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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

[[Page 10499]]

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

[[Page 10500]]

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
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