```

[Federal Register: May 20, 2010 (Volume 75, Number 97)]
[Rules and Regulations]               
[Page 28188-28194]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20my10-3]                         

=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF STATE

22 CFR Part 22

[Public Notice: 7018]
RIN 1400-AC57

 
Schedule of Fees for Consular Services, Department of State and 
Overseas Embassies and Consulates

AGENCY: Bureau of Consular Affairs, State.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: Further to the Department's proposed rule to amend the 
Schedule of Fees for Consular Services (Schedule) for nonimmigrant visa 
and border crossing card application processing fees, this rule raises 
from $131 to $140 the fee charged for the processing of an application 
for most non-petition-based nonimmigrant visas (Machine-Readable Visas 
or MRVs) and adult Border Crossing Cards (BCCs). The rule also provides 
new tiers of the application fee for certain categories of petition-
based nonimmigrant visas and treaty trader and investor visas (all of 
which are also MRVs). Finally, the rule increases the $13 BCC fee 
charged to Mexican citizen minors who apply in Mexico, and whose parent 
or guardian already has a BCC or is applying for one, by raising that 
fee to $14 by virtue of a congressionally mandated surcharge that went 
into effect in 2009. The Department of State is adjusting the fees to 
ensure that sufficient resources are available to meet the costs of 
providing consular services in light of an independent cost of service 
study's findings that the U.S. Government is not fully covering its 
costs for the processing of these visas under the current cost 
structure. Eighty-one comments were received during the period for 
public comment, and this rule also addresses a comment received about a 
prior change to the MRV fee implemented on January 1, 2008. This rule 
addresses comments received thus far, and reopens the comment period on 
these fees for an additional 60 days.

DATES: Effective Date: This interim final rule becomes effective June 
4, 2010. Comment date: Written comments must be received on or before 
July 19, 2010.

ADDRESSES: Interested parties may contact the Department by any of the 
following methods:
     Persons with access to the Internet may view this notice 
and submit comments by going to the regulations.gov Web site at: http://www.regulations.gov/index.cfm.
     Mail (paper, disk, or CD-ROM): U.S. Department of State, 
Office of the Executive Director, Bureau of Consular Affairs, U.S. 
Department of State, Suite H1001, 2401 E Street, NW., Washington, DC 
20520.
     E-mail: fees@state.gov. You must include the RIN (1400-
AC57) in the subject line of your message.

FOR FURTHER INFORMATION CONTACT: Amber Baskette, Office of the 
Executive Director, Bureau of Consular Affairs, Department of State; 
phone: 202-663-3923, telefax: 202-663-2599; e-mail: fees@state.gov.

SUPPLEMENTARY INFORMATION: 

Background

    The Department published a proposed rule in the Federal Register, 
74 FR 66076, on December 14, 2009, proposing to amend 22 CFR 22.1. 
Specifically, the rule proposed changes to the Schedule of Fees for 
Consular Services for nonimmigrant visa and border crossing card 
application processing fees, and provided 60 days for comments from the 
public. In response to requests by the public for more information and 
a further opportunity to submit comments, the Department subsequently 
published a supplementary notice in the Federal Register, 75 FR 14111, 
on March 24, 2010 (Public Notice 6928). The supplementary notice 
provided a more detailed explanation of the Cost of Survey Study 
(CoSS), the activity-based costing model that the Department used to 
determine the proposed fees for consular services, and reopened the 
comment period for an additional 15 days. During this and the previous 
60-

[[Page 28189]]

day comment period, 81 comments were received, either by e-mail or 
through the submission process at http://www.regulations.gov. The 
current notice reflects responses by the Department to the comments 
received in the 75 days during which the comment period for this 
proposed rule was open. While the Department will implement the 
proposed changes to the Schedule of Fees contained in this notice and 
begin collecting the new fees 15 days after publication of this rule, 
on that same date it will also post additional information regarding 
the CoSS model and fee-setting exercise on its Web site 
(travel.state.gov) and will accept further public comments for an 
additional 60 days. The Department will consider these further 
comments, and whether to make any changes to the rule in response to 
them, prior to publishing a final rule.

What Is the Authority for This Action?

    As explained when the revised Schedule of Fees was published as a 
proposed rule, the Department of State derives the statutory authority 
to set the amount of fees for the consular services it provides, and to 
charge those fees, from the general user charges statute, 31 U.S.C. 
9701. See, e.g., 31 U.S.C. 9701(b)(2)(A) (``The head of each agency * * 
* may prescribe regulations establishing the charge for a service or 
thing of value provided by the agency * * * based on * * * the costs to 
the Government.''). As implemented through Executive Order 10718 of 
June 27, 1957, 22 U.S.C. 4219 further authorizes the Department to 
establish fees to be charged for official services provided by U.S. 
embassies and consulates. When a service provided by the Department 
``provides special benefits to an identifiable recipient beyond those 
that accrue to the general public,'' guidance issued by the Office of 
Management and Budget (OMB) directs that charges for the good or 
service in question shall be ``sufficient to recover the full cost to 
the Federal Government * * * of providing the service * * * or good * * 
* .'' OMB Circular A-25, ] 6(a)(1), (a)(2)(a).
    Other authorities allow the Department to charge fees for consular 
services, but not to determine the amount of such fees, as the amount 
is statutorily determined, such as the $13 fee, discussed below, for 
machine-readable BCCs for certain Mexican citizen minors. Omnibus 
Consolidated and Emergency Supplemental Appropriations Act of 1999, 
Public Law 105-277, 112 Stat. 2681-50, Div. A, Title IV, Sec.  410(a), 
(reproduced at 8 U.S.C. 1351 note).
    A number of other statutes address specific fees and surcharges 
related to nonimmigrant visas. A cost-based, nonimmigrant visa 
processing fee for MRVs and BCCs is authorized by section 140(a) of the 
Foreign Relations Authorization Act, Fiscal Years 1994 and 1995, Public 
Law 103-236, 108 Stat. 382, as amended, and such fees remain available 
to the Department until expended. See, e.g., Enhanced Border Security 
and Visa Entry Reform Act of 2002, Public Law 107-173, 116 Stat. 543; 
see also 8 U.S.C. 1351 note (reproducing amended law allowing for 
retention of MRV and BCC fees). Furthermore, section 239(a) of the 
William Wilberforce Trafficking Victims Protection Reauthorization Act 
of 2008 (``Wilberforce Act'') requires the Secretary of State to 
collect a $1 surcharge on all MRVs and BCCs in addition to the 
processing fee, including on BCCs issued to Mexican citizen minors 
qualifying for a statutorily mandated $13 processing fee; this 
surcharge must be deposited into the Treasury. See Public Law 110-457, 
122 Stat. 5044, Title II, Sec.  239 (reproduced at 8 U.S.C. 1351 note).
    The Department last changed MRV and BCC fees in an interim final 
rule dated December 20, 2007 and effective January 1, 2008. 72 FR 
72243. See Department of State Schedule for Fees and Funds, 22 CFR 
22.1-22.5. This rule changed the MRV fee from $100 to $131.

Why Is the Department Raising the Nonimmigrant Visa Fees at This Time?

    Consistent with OMB Circular A-25 guidelines, the Department 
contracted for an independent cost of service study (CoSS), which used 
an activity-based costing model from August 2007 through June 2009 to 
provide the basis for updating the Schedule. The results of that study 
are the foundation of the current changes to the Schedule.
    The CoSS concluded that the average cost to the U.S. Government of 
accepting, processing, adjudicating, and issuing a non-petition-based 
MRV application, including an application for a BCC, is approximately 
$136.93 for Fiscal Year 2010. (The only exception is the non-petition-
based E category visa, discussed below, for which costs are greater 
than $136.93.) The CoSS arrived at the $136.93 figure taking into 
account actual and projected costs of worldwide nonimmigrant visa 
operations, visa workload, and other related costs. Please note that in 
the proposed rule published December 14, 2009, the Department used a 
figure of $136.37, which was calculated using a weighted average of 
Fiscal Year 2009 and Fiscal Year 2010 costs; the $136.93 figure now 
included is based exclusively on Fiscal Year 2010 costs--as are all 
other costs presented in this Interim Final Rule. This cost also 
includes the unrecovered costs of processing BCCs for certain Mexican 
citizen minors. That processing fee is statutorily frozen at $13, even 
though such BCCs cost the Department the same amount to process as all 
other MRVs and BCCs--that is, significantly more than $13. (As 
discussed below, a statutorily imposed $1 surcharge brings the total 
fee for Mexican citizen minor BCCs to $14.) The Department's costs 
beyond $13 must, by statute, be recovered by charging more for all 
MRVs, as well as all BCCs not meeting the requirements for the reduced 
fee. See Omnibus Consolidated and Emergency Supplemental Appropriations 
Act of 1999, Public Law 105-277, Div. A, Title IV, Sec.  410(a)(3) 
(reproduced at 8 U.S.C. 1351 note) (Department ``shall set the amount 
of the fee [for processing MRVs and all other BCCs] at a level that 
will ensure the full recovery by the Department * * * of the costs of 
processing'' all MRVs and BCCs, including reduced cost BCCs for 
qualifying Mexican citizen minors).
    Subsequent to the completion of data-gathering for the CoSS, the 
Department's Bureau of Consular Affairs decided to consolidate visa 
operations support services through an initiative called the Global 
Support Strategy (GSS) in Fiscal Year 2010. GSS consolidates in one 
contract costs of services currently being paid by MRV and BCC 
applicants directly to various private vendors in addition to the 
application processing fee paid to the Department, including 
appointment setting, fee collection, offsite data collection services, 
and document delivery. The GSS contract was initiated due to concerns 
that total application fees for visa services varied from country to 
country because, although the Department charges the same application 
processing fee for the same category of visa across all countries, the 
private vendors providing the necessary ancillary services charged fees 
that were different from one another. The Department's intent is to 
charge a consistent fee worldwide to applicants for the same category 
of visa that is comprehensive of the services the Department performs 
to process the visa, including any support services performed by 
companies contracted by the Department. The Department awarded the GSS 
contract on February 26, 2010, but total costs are not yet known. 
According to Department estimates, the costs of GSS services performed 
in Fiscal Year 2010 will be at least $2 per application. Future costs

[[Page 28190]]

related to GSS will be significantly higher and will impact fee revenue 
for the Department. When this additional cost is factored in along with 
the costs of recovering losses from the Mexican citizen minor BCC, the 
estimated cost to the U.S. Government of accepting, processing, and 
adjudicating non-petition-based MRV (except E category) applications, 
and BCC applications for all Mexican citizens not qualifying for a 
reduced-fee minor BCC, becomes $138.93.
    Moreover, section 239(a) of the Wilberforce Act requires the 
Department to collect a fee or surcharge of $1 (``Wilberforce 
surcharge'') in addition to cost-based fees charged for MRVs and BCCs, 
to support anti-trafficking programs. See Wilberforce Act, Public Law 
110-457,Title II, Sec.  239.
    Combining the $138.93 cost to the U.S. Government with the $1 
Wilberforce surcharge, the Department has determined that the fee for 
non-petition-based MRV (except E category) and BCC applications, with 
the exception of certain Mexican citizen minors' BCCs statutorily set 
at $13, will be $140. (The BCC fee is being set at the same level as 
the MRV fee--$140-- because its processing procedures, and attendant 
production costs, are almost identical to those of the MRV.) This $140 
fee will allow the Government to recover the full cost of processing 
these visa applications during the anticipated period of the current 
Schedule, and to comply with its statutory obligation to collect from 
applicants the $1 Wilberforce surcharge. The Department rounded up to 
$140 to make it easier for U.S. embassies and consulates to convert to 
foreign currencies, which are most often used to pay the fee.
    As noted above, for Mexican citizens under 15 years of age who 
apply for a BCC in Mexico, and have at least one parent or guardian who 
has a BCC or is also applying for one, the BCC fee is statutorily set 
at $13. See Consolidated and Emergency Supplemental Appropriations Act 
of 1999, Public Law 105-277, Div. A, Title IV, Sec.  410(a)(1)(A) 
(reproduced at 8 U.S.C. 1351 note). Nevertheless, the $1 Wilberforce 
surcharge applies to this fee by the terms of law establishing the 
surcharge, which postdates Public Law 105-277, Division A, Title IV, 
Sec.  410(a)(1)(A), and does not exempt it from its application. See 
Wilberforce Act, Public Law 110-457, Title II, Sec.  239(a). Therefore, 
the Department must now charge $14 for this category of BCC.
    As discussed in the supplementary notice of March 24, 2010, the 
Department has used detailed activity-based costing models in past 
years to set fees in Consular Schedules of Fees. However, in previous 
iterations of the CoSS, the Department was not able to review the 
activity-based costs of its services, including the production of MRVs 
and BCCs, with the same degree of accuracy that the most recent CoSS 
now allows.
    The most recent CoSS found that the cost of accepting, 
adjudicating, and issuing MRV applications for the following categories 
of visas is appreciably higher than for other categories: E (treaty-
trader or treaty-investor); H (temporary workers and trainees); K 
(fianc[eacute](e)s and certain spouses of U.S. citizens); L 
(intracompany transferee); O (aliens with extraordinary ability); P 
(athletes, artists, and entertainers); Q (international cultural 
exchange visitors); and R (aliens in religious occupations). Each of 
these visa categories requires the Department to perform a number of 
additional tasks and processes beyond those that are necessary for 
producing a BCC or other MRV, including review of extensive 
documentation and a more in-depth interview of the applicant. Some of 
the specific additional tasks and processes required to process the K-
category fianc[eacute](e) visa, for example, are described below in the 
``Analysis of Comments'' section.
    The CoSS determined that for FY 2010, the average cost of 
processing applications for H, L, O, P, Q, and R visas is $148.16; the 
average cost of processing applications for K visas is $348.39; and the 
average cost of processing applications for E visas is $390.58. These 
totals do not include the Wilberforce surcharge or any funding for GSS. 
Rather than setting a single MRV fee applicable to all MRVs regardless 
of category as was done in the past, the Department has concluded that 
it will be more equitable to set the fee for each MRV category at a 
level commensurate with the average cost of producing that particular 
product. Accordingly, since applications for BCCs and non-petition-
based MRVs (except E-category) require less review and have unit costs 
lower than E, H, K, L, O, P, Q, or R visa applications, the applicant 
should pay a lower fee. By the same token, those applying for an H, L, 
O, P, Q, or R visa should pay a lower fee than those applying for an E 
or K visa, as the latter two categories require an even more extensive 
review.
    Therefore, this rule establishes the following fees for these 
categories corresponding to projected cost figures for the visa 
category as determined by the CoSS. These fees incorporate the $1 
Wilberforce surcharge that must be added to all nonimmigrant MRVs, see 
Public Law 110-457, Title II, Sec.  239(a):

--H, L, O, P, Q, and R: $150;
--E: $390; and
--K: $350.

    The Department rounded these fees to the nearest $10 for the ease 
of converting to foreign currencies, which are most often used to pay 
the fee. The additional revenue resulting from this rounding will be 
used for GSS services.

Analysis of Comments

    As noted, the proposed rule was published for comment on December 
14, 2009. During the comment period, which initially closed February 
12, 2010 and was subsequently extended until April 8, 2010, the 
Department received 81 comments. With the publication of this interim 
final version of the rule, the Department is reopening the comment 
period for an additional 60 days, and will consider any further 
comments received before publishing a final rule.
    The majority of comments received--48 out of 81--criticized the 
increase in the application fee for K-category fianc[eacute](e) visas. 
The Department of State is adjusting the fee for K-category 
fianc[eacute](e) visas from $131 to $350 specifically because 
adjudicating a K visa requires a review of extensive documentation and 
a more in-depth interview of the applicant than other categories MRVs. 
As noted in the supplementary notice, for example, a K visa requires 
pre-processing of the case at the National Visa Center, where the 
petition is received from the Department of Homeland Security (DHS), 
packaged, and assigned to the appropriate embassy or consulate. K visa 
processing also requires intake and review of materials not required by 
some other categories of nonimmigrant visas, such as the I-134 
affidavit of support and the DS-2054 medical examination report. See 75 
FR 14111, 14113. The higher incidence of fraud in K visa applications 
also requires, in many cases, a more extensive fraud investigation than 
is necessary for some other types of visa. Indeed, Department of State 
processing of a K visa is almost identical to that required for a 
family-based immigrant visa, so it follows that the costs of K visa 
processing are similar to those for immigrant visas. (Spouses, 
children, and parents applying for immigrant visas to the United States 
currently pay the Department of State a $355 application processing fee 
as well as a $45 immigrant visa security surcharge, items 32 and 36 on 
the Schedule of Fees.)
    Several authors commented on the overall price of a K visa, which 
includes fees paid by the U.S. citizen fianc[eacute](e) to

[[Page 28191]]

DHS. It is important to note, however, that DHS fees are not received 
by and do not cover the costs of Department of State processing. While 
the Department of State is aware of the financial impact this fee 
increase will have on individuals seeking to bring their 
fianc[eacute](e)s to the United States, the Department has concluded 
that it would be more equitable to those applying for other categories 
of MRVs, for which such extensive review is not necessary, to establish 
separate fees that more accurately reflect the cost of processing these 
visas, rather than set a single average fee for all MRV categories that 
is necessarily higher due to the inclusion of K visas in the 
calculation.
    The Department received one comment that supported the fee increase 
for K visas, but argued that these fees should be based not on the cost 
of maintaining the current level of visa processing services, but 
rather should assess the quality of those services and seek to 
determine if there would be a public preference for higher fees if they 
resulted in higher quality expedited visa services. This proposal 
offers an alternative to the current fee structure, which is based on 
cost. See, e.g., 31 U.S.C. 9701(b)(2); OMB Circular A-25, ] 6(a)(2). 
Furthermore, while the Department does not as a policy offer expedited 
visa service in exchange for a higher fee, it appreciates the 
recommendation and will examine it for future fee-setting exercises.
    One commenter argued that Australian applicants for E-3 ``treaty 
alien in a specialty occupation'' visas, which are not petition-based, 
should be charged the same fee as applicants for H visas, which are 
petition-based, rather than the proposed higher E rate--that is, $150 
instead of $390. However, because E-3 visas are not petition-based when 
issued overseas, they require the Department of State visa adjudicator 
to both determine whether the employment falls under the E-3 program 
(similar to the work DHS performs in adjudicating the petition), and 
assess the eligibility of the applicant; this process is more similar 
to other E visas than to H visas, for which DHS has already adjudicated 
a petition.
    One comment requested that the Department allow exchange visitors 
in the United States on a J-1 visa to renew their visas by mail in 
order to save costs. Current policies and procedures do allow a 
consular officer to waive the physical appearance of an applicant in 
the J-1 visa class, but only if he or she meets a number of specific 
criteria. 9 Foreign Affairs Manual 41.102 N3.
    The Department of State received seven comments endorsing the fee 
increases or asking that the fees be increased further. As described 
above, the Department has set the current proposed fees at cost, and it 
may not set its fees above cost. See, e.g., 31 U.S.C. Sec.  
9701(b)(2)(A). The Department received one request for clarification as 
to whether these fee increases will eliminate all visa reciprocity 
fees. They will not eliminate such fees.
    A number of other comments proposed alternatives to cost-based 
fees, or expressed other concerns over charging fees commensurate with 
the Department's cost to produce the visa in question. For instance, 
the Department received six comments arguing that increasing MRV fees 
would be disadvantageous to applicants in less wealthy nations, and one 
comment arguing that fees should be based on the ability of the 
applicant to pay, rather than the cost to the U.S. Government of 
providing the service. The Department received four comments 
questioning whether increasing these fees will result in higher visa 
fees charged to U.S. citizens by foreign governments, two of which 
referenced China in particular. Two additional comments argued against 
the fee increases in general, suggesting that these fee changes were 
based not on cost but only on a desire to get more money from 
applicants. The Department is sympathetic to those with less means to 
cover the costs of a visa application, and acknowledges that the higher 
fees may result in some countries reciprocally raising visa fees 
charged to U.S. applicants. Nevertheless, as noted above, the 
Department of State is required to recover the costs of visa processing 
through user fees, and the Department has accordingly set these fees at 
a level that will allow full cost recovery.
    The Department received two comments regarding U.S. nationality 
law, which is not affected in any way by this rule.
    The Department received five comments, including one submitted 
jointly by United Air Lines, Inc. and the U.S. Travel Association on 
January 29, 2010, that expressed concern that raising MRV fees would 
result in a decline in travel to the United States and harm the U.S. 
economy. While the Department appreciates the concerns expressed, it 
reiterates that it is required to set its visa processing user fees at 
an amount that allows full cost recovery, so that these services are 
not subsidized by U.S. taxpayers. See, e.g., OMB Circular A-25, ] 
6(a)(2). The Department also points out that 92 percent of MRV 
applicants will see an increase of less than ten dollars. In addition, 
demand for U.S. nonimmigrant visas did not decline as a result of the 
last MRV fee increase, which took effect January 1, 2008. In fact, 
workload in the final three quarters of Fiscal Year 2008 was greater 
than the same period in Fiscal Year 2007.
    Three comments, including the previously referenced joint comment 
from United Air Lines and the U.S. Travel Association, one from the 
American Immigration Lawyers Association, and one from the Air 
Transport Association of America, Inc., requested that the Cost of 
Service Study be made publicly available. In response, the Department 
published the supplementary notice of March 24, 2010, see 75 FR 14111, 
and allowed an additional 15 days for public comment. The Department 
received one further comment from United Airlines and the U.S. Travel 
Association, on April 8, 2010, within the 15-day period. That comment 
made an additional request for actual cost and related data and 
specifically requested: Specific inputs used to determine cost for the 
U.S. passport book and passport card; that the Department confirm how 
the CoSS ensured that administrative support costs were correctly 
attributed to individual consular services and that these costs for 
positions not dedicated to fee-based consular activities were excluded 
from the CoSS; and that the Department confirm whether the CoSS 
accounted for the transition to the DS-160 electronic nonimmigrant visa 
application. The comment also requested that the Department suspend 
final publication of the rules, release additional data supporting its 
proposed fee increases, and hold a public meeting to address questions 
from the public.
    Concerning the request for specific inputs used to determine the 
cost for the U.S. passport book and card, the Department will address 
that request in the separate interim final rule governing fees for 
those and other consular services, RIN 1400-AC58.
    With regard to the question of administrative support costs, the 
International Cooperative Administrative Support Services (ICASS) 
system is the means by which the Department shares with other agencies 
the costs of shared administrative support at embassies and consulates 
overseas. The CoSS includes not all Department of State ICASS costs, 
but rather only the share of those costs equal to the share of consular 
``desks'' at all embassies and consulates. The consular share of ICASS 
costs--which represent an ``allocated cost'', a concept described in 
more detail in the supplementary notice of March 24, 2010--was then 
assigned equally within

[[Page 28192]]

the model to all overseas services. Because the Department aims to use 
the most accurate and complete cost data in its cost calculations, 
beginning in Fiscal Year 2011 the Bureau of Consular Affairs will be 
considered its own separate entity for ICASS purposes, which the 
Department believes will result in a more precise accounting of ICASS 
costs than calculating consular ICASS costs based on the proportion of 
consular staff. We anticipate that this adjustment will actually 
increase the ICASS costs attributed to consular services.
    With regard to the DS-160, United and the U.S. Travel Association 
suggest that the DS-160 will ``presumably reduce the space, personnel, 
storage and other costs associated with previous paper based 
nonimmigrant visa applications.'' The most recent CoSS, upon which the 
proposed fees are based, were calculated using Fiscal Years 2006, 2007, 
and 2008 as ``base years'' and Fiscal Years 2009 and 2010 as 
``predictive years.'' The DS-160 was still only a pilot program through 
Fiscal Year 2009, and has not yet been rolled out worldwide. Once 
changes in costs are known, they will of course be incorporated into 
future Cost of Service Studies. Further, while the DS-160 presents 
great advantages in making more applicant data available electronically 
and allowing advance review of such data, it has not thus far resulted 
in any significant time savings for consular staff. Even storage space 
and labor required to box and ship applications will continue until all 
previous paper applications are retired from embassies and consulates, 
which we anticipate will be sometime in Fiscal Year 2011.
    Based on review of all the comments, including those of United and 
the U.S. Travel Association, the Department has determined that it is 
unnecessary to suspend publication of this interim final rule pending 
release of additional data or a public meeting. As explained above, the 
Department has provided information regarding the basis for the MRV and 
BCC fee increases in an initial notice of proposed rulemaking on 
December 14, 2009, and provided additional qualitative information in 
response to the requests of United, the U.S. Travel Association, and 
others in a supplemental notice dated March 24, 2010. The Department 
provided the public a total of 75 days in which to make comments and 
pose questions to the Department about the proposed MRV and BCC fee 
changes. The Department determined that a supplemental written notice 
would provide more useful information and reach a broader public 
audience, than a public meeting or other action. The Department has 
also decided to post additional quantitative information regarding its 
CoSS model and fee-setting exercise on its Web site (travel.state.gov), 
which will be available on the date this rule is published. It will 
accept public comments for an additional 60 days and consider them in 
advance of publishing a final rule.
    The American Immigration Lawyers Association argued that the 
Department did not provide evidence to support what it termed a 
``substantial'' increase for petition-based employment visas, and 
stated that adjudication of these petition-based visa applications 
should require less time than for non-petition cases. The Department 
has provided cost data for those cases: The average cost of processing 
applications for H, L, O, P, Q, and R visas is $148.16 in Fiscal Year 
2010, versus $136.93 for most non-petition-based visas. (Neither cost 
figure includes the Wilberforce surcharge or GSS costs.) As discussed 
above, the unit cost for petition-based cases includes the costs of 
activities that are not required for non-petition cases, such as 
receiving petition information from DHS, conducting reviews of 
government and commercial databases to confirm the existence of the 
petitioning business, and entering that data into the Petition 
Information Management Service (PIMS) database. The single exception to 
the greater expense of producing petition-based visas is the non-
petition-based E-category visa which, for reasons described above, is 
even more costly to produce than the various categories of petition-
based visa.
    The Department received a comment from the Microsoft Corporation 
regarding the January 2008 MRV fee increase resulting from the interim 
final rule dated December 20, 2007. See 72 FR 72243. That comment 
argued that the Department should give the public an opportunity to 
comment on proposed MRV fee changes before they are put into effect, 
and that it should make available a more detailed analysis of overall 
cost. The Department has made this information available, and has given 
the public a total of 75 days to comment on it and the proposed fees, 
in the proposed rule of December 14, 2009, and the supplementary notice 
of March 24, 2010. See 74 FR 66076, 75 FR 14111. The comment also 
touched upon the cost of FBI fingerprint and name checks, suggesting 
that such checks may not be effective or necessary. The U.S. Government 
has determined that checking the fingerprints of visa applicants 
against the FBI's Integrated Automated Fingerprint Identification 
System database is a critical tool for identifying applicants with 
criminal ineligibilities. Further, FBI name checks are an important 
piece of the interagency clearance process for applicants subject to 
security advisory opinions. Microsoft also argued that the December 20, 
2007 interim final rule did not provide assurance that the fee 
increases would lead to improvements in customer service. However, as 
noted repeatedly above, these fees must be based on actual cost. See, 
e.g., OMB Circular A-25, ] 6(a)(2). While customer service is extremely 
important to the Department and it strives constantly to improve the 
quality of its service, changing process or altering customer service 
standards do not figure strictly into the calculus of setting user 
fees.
    Finally, in their joint comment of January 29, 2010, United 
Airlines and the U.S. Travel Association protested the incorporation of 
a $2 startup cost per MRV or BCC application for GSS, since as of the 
date of the proposed rule on MRV and BCC fees, final costs of GSS were 
not yet known and the contract had not yet been awarded, and thus the 
Department had not yet incurred any GSS startup costs. The Department 
awarded the GSS contract on February 26, 2010, with a 10-year ceiling 
of $2.8 billion. The costs of the three-to-five task orders the 
Department will award under this contract in Fiscal Year 2010 will be 
at least $2 per application.

Regulatory Findings

Administrative Procedure Act

    The Department is issuing this interim final rule, with an 
effective date 15 days from the date of publication. The Administrative 
Procedure Act permits a final rule to become effective fewer than 30 
days after publication if the issuing agency finds good cause. 5 U.S.C. 
Sec.  553(d)(3). The Department finds that good cause exists for an 
early effective date in this instance for the following reasons.
    As stated in the supplementary information above, the Department's 
mandate is to align as closely as possible its user fees for consular 
services with the actual, measured costs of those services. This 
enables better cost recovery and ensures that U.S. taxpayers do not 
subsidize consular services. 31 U.S.C. 9701; OMB Circular A-25. See 
also GAO-08-386SP, Federal User Fees: A Design Guide. The CoSS, which 
supports the fees set by this rule, used data from past years, as well 
as predictive data for Fiscal Years 2010

[[Page 28193]]

and 2011, to determine the amount of the fees set by this rule.
    The fees currently charged by the Department cover less than 94 
percent of the underlying services' true cost. On a monthly basis, 
taxpayers are paying $5.4 million in unmet costs for consular services 
that should be borne by those who actually benefit from those services. 
In the current economic climate, this shortfall is unusually grave, 
exacerbating budgetary pressures and threatening other critical 
Department priorities. It is thus in the public's interest to make the 
appropriated funds currently used to fill this gap available as soon as 
possible.
    For these reasons, and because the public's level of preparation 
for this fee increase is unlikely to be meaningfully improved by 15 
additional days of advance warning, the Department finds that good 
cause exists for making this rule effective 15 days after its 
publication as an interim final rule.

Regulatory Flexibility Act

    The Department, in accordance with the Regulatory Flexibility Act, 
5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies 
that it will not have a significant economic impact on a substantial 
number of small entities as defined in 5 U.S.C. 601(6). This rule 
raises the application processing fee for nonimmigrant visas. Although 
the issuance of some of these visas is contingent upon approval by DHS 
of a petition filed by a U.S. company with DHS, and these companies pay 
a fee to DHS to cover the processing of the petition, the visa itself 
is sought and paid for by an individual foreign national overseas who 
seeks to come to the United States for a temporary stay. The amount of 
the petition fees that are paid by small entities to DHS is not 
controlled by the amount of the visa fees paid by individuals to the 
Department of State. While small entities may be required to cover or 
reimburse employees for application fees, the exact number of such 
entities that does so is unknown. Given that the increase in petition 
fees accounts for only 7 percent of the total percentage of visa fee 
increases, the modest 15 percent increase in the application fee for 
employment-based nonimmigrant visas is not likely to have a significant 
economic impact on the small entities that choose to reimburse the 
applicant for the visa fee.

Unfunded Mandates 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 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, 2 
U.S.C. Chapter 25.

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 Fairness Act of 1996. See 5 
U.S.C. 804(2). This rule will not result in an annual effect on the 
economy of $100 million or more; a major increase in costs or prices 
for consumers, individual industries, federal, state, or local 
government agencies, or geographic regions; or 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 export markets.

Executive Order 12866

    OMB considers this rule to be a ``significant regulatory action'' 
under Executive Order 12866, section 3(f), Regulatory Planning and 
Review, September. 30, 1993. Accordingly, this rule was submitted to 
OMB for review. This rule is necessary in light of the Department of 
State's CoSS finding that the cost of processing nonimmigrant visas has 
increased since the fee was last set in 2007. The Department is setting 
the nonimmigrant visa fees in accordance with 31 U.S.C. 9701 and other 
applicable legal authority, as described in detail above. See, e.g., 31 
U.S.C. 9701(b)(2)(A) (``The head of each agency * * * may prescribe 
regulations establishing the charge for a service or thing of value 
provided by the agency * * * based on * * * the costs to the 
Government.''). This regulation sets the fees for nonimmigrant visas at 
the amount required to recover the costs associated with providing this 
service to foreign nationals.

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.

Executive Order 13175

    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 preempt tribal law. 
Accordingly, the requirements of section 5 of Executive Order 13175 do 
not apply to this rulemaking.

Paperwork Reduction Act

    This rule does not impose any new or modify any existing reporting 
or recordkeeping requirements.

List of Subjects in 22 CFR Part 22

    Consular services, fees, passports and visas.

0
Accordingly, for the reasons stated in the preamble, 22 CFR part 22 is 
amended as follows:

PART 22--[AMENDED]

0
1. The authority citation for part 22 is revised to read as follows:

    Authority:  8 U.S.C. 1101 note, 1153 note, 1183a note, 1351, 
1351 note, 1714, 1714 note; 10 U.S.C. 2602(c); 11 U.S.C. 1157 note; 
22 U.S.C. 214, 214 note, 1475e, 2504(a), 4201, 4206, 4215, 4219, 
6551; 31 U.S.C. 9701; Exec. Order 10,718, 22 FR 4632 (1957); Exec. 
Order 11,295, 31 FR 10603 (1966).

0
2. Revise Sec.  22.1 Item 21 to read as follows:

Sec.  22.1  Schedule of fees.

* * * * *

[[Page 28194]]

------------------------------------------------------------------------
                        Item No.                                Fee
------------------------------------------------------------------------
                 SCHEDULE OF FEES FOR CONSULAR SERVICES
------------------------------------------------------------------------

                              * * * * * * *
                       Nonimmigrant Visa Services
------------------------------------------------------------------------
21. Nonimmigrant visa and border crossing card
 application processing fees (per person):
    (a) Non-petition-based nonimmigrant visa (except E              $140
     category)..........................................
    (b) H, L, O, P, Q and R category nonimmigrant visa..            $150
    (c) E category nonimmigrant visa....................            $390
    (d) K category nonimmigrant visa....................            $350
    (e) Border crossing card--age 15 and over (valid 10             $140
     years).............................................
    (f) Border crossing card--under age 15; for Mexican              $14
     citizens if parent or guardian has or is applying
     for a border crossing card (valid 10 years or until
     the applicant reaches age 15, whichever is sooner).

                              * * * * * * *
------------------------------------------------------------------------

    Dated: May 14, 2010.
 Patrick Kennedy,
Under Secretary of State for Management, Department of State.
[FR Doc. 2010-12125 Filed 5-19-10; 8:45 am]
BILLING CODE 4710-06-P
```