76032 Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Rules and Regulations 

requirements and efficient 

administration of the Act by eliminating 

unnecessary follow-up contact. 

(c) Covered types of services. The 

services covered by the BE–120 include 

sales and purchases for the following 

transactions (transaction types 1–8 

include rights to use, rights to 

distribute, or outright sales or 

purchases): 

(1) Rights related to industrial 

processes and products; 

(2) Rights related to books, CD’s, 

digital music, etc.; 

(3) Rights related to trademarks; 

(4) Rights related to performances and 

events pre-recorded on motion picture 

film and TV tape (including digital 

recordings); 

(5) Rights related to broadcast and 

recording of live performances and 

events; 

(6) Rights related to general use 

computer software; 

(7) Business format franchising fees; 

(8) Other intellectual property; 

(9) Accounting, auditing, and 

bookkeeping services; 

(10) Advertising services; 

(11) Auxiliary insurance services; 

(12) Computer and data processing 

services; 

(13) Construction services; 

(14) Data base and other information 

services; 

(15) Educational and training services; 

(16) Engineering, architectural, and 

surveying services; 

(17) Financial services (purchases 

only); 

(18) Industrial engineering services; 

(19) Industrial-type maintenance, 

installation, alteration, and training 

services; 

(20) Legal services; 

(21) Management, consulting, and 

public relations services (includes 

expenses allocated to/from a parent and 

its affiliates); 

(22) Merchanting services; 

(23) Mining services; 

(24) Operational leasing services; 

(25) Trade-related services, other than 

merchanting services; 

(26) Performing arts, sports, and other 

live performances, presentations, and 

events; 

(27) Premiums paid on primary 

insurance (payments only); 

(28) Losses recovered on primary 

insurance; 

(29) Research and development 

services; 

(30) Telecommunications services; 

(31) Agricultural services; 

(32) Contract manufacturing services; 

(33) Disbursements to fund 

production costs of motion pictures; 

(34) Disbursements to fund newsgathering costs and production costs of 

program material other than news; 

(35) Waste treatment and depollution 

services; and 

(36) Other selected services. 

[FR Doc. 2011–30914 Filed 12–5–11; 8:45 am] 

BILLING CODE 3510–06–P 

DEPARTMENT OF STATE 

22 CFR Part 22 

[Public Notice 7706] 

RIN 1400–AC57 

Schedule of Fees for Consular 

Services, Department of State and 

Overseas Embassies and Consulates 

AGENCY: Bureau of Consular Affairs, 

State. 

ACTION: Final rule. 

SUMMARY: This rule adopts without 

change the interim final rule published 

in the Federal Register, 75 FR 28188, on 

May 20, 2010 (Public Notice 7018). 

Specifically, the rule proposed changes 

to the Schedule of Fees for Consular 

Services (Schedule) for nonimmigrant 

visa and border crossing card 

application processing fees. This 

rulemaking adopts as final the change 

from $131 to $140 for 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. Finally, the rule 

adopts as final the increase in the BCC 

fee charged to Mexican citizens under 

age 15 who apply in Mexico, and whose 

parent or guardian already has a BCC or 

is applying for one, from $13 to $14. 

This latter change results from 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. The Department 

endeavors to recover the cost of 

providing services that benefit specific 

individuals, as opposed to the general 

public. See OMB Circular A–25, section 

6(a)(1), (a)(2)(a). For this reason, the 

Department has adjusted the Schedule. 

DATES: Effective Date: This rule is 

effective December 6, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Polly Hill, Office of the Comptroller, 

Bureau of Consular Affairs, Department 

of State; phone: (202) 663–1301, telefax: 

(202) 663–2599; email: fees@state.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

For the complete explanation of the 

background of this rule, including the 

rationale for it, the Department’s 

authority to make the fee changes in 

question, and an explanation of the 

CoSM that produced the fee amounts, 

consult the prior public notices: 75 FR 

66076 (Dec. 14, 2009); 75 FR 14111 

(Mar. 24, 2010); and 75 FR 28188 (May 

20, 2010). 

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 published a 

supplementary notice in the Federal 

Register, 75 FR 14111, on March 24, 

2010. The supplementary notice 

provided a more detailed explanation of 

the CoSM, 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- 

day comment period, 81 comments were 

received, either by email or through the 

submission process at 

www.regulations.gov. The Department 

analyzed these 81 comments in the 

interim final rule at 75 FR 28188, 

28190–82, and does not reproduce that 

analysis here. Instead, the current notice 

addresses only the additional comments 

received in the further 60 days during 

which the comment period for this 

interim final rule was open. In total, the 

public has been given 135 days to 

comment on this change to the Schedule 

of Fees. 

This rule establishes the following 

fees for these categories corresponding 

to projected cost figures for the visa 

category as determined by the CoSM. 

These fees incorporate the $1 

Wilberforce surcharge that must be 

added to all nonimmigrant MRVs, see 

Public Law 110–457, Title II, § 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 


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Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Rules and Regulations 76033 

are most often used to pay the fee. The 

additional revenue resulting from this 

rounding will be used to cover the costs 

of Global Support Strategy (GSS) 

services. 

Analysis of Comments 

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. For an analysis of those 

comments, please see the interim final 

rule in the Federal Register, 75 FR 

14111, published May 20, 2010 (Public 

Notice 7018). 

The Department published the 

interim final rule on May 20, 2010, and 

reopened the comment period for an 

additional 60 days. During that 

comment period, which closed on July 

19, 2010, the Department received an 

additional nine comments. The 

following analysis addresses these nine 

comments. Of the nine, three were in 

support of the increase. Reasons for 

support included endorsement of the fee 

changes as necessary to allow the 

Department to meet its budget. 

Two comments criticized the 

increased K-category fiance ́(e) visa fee, 

arguing that the increase in the K visa 

fee will make it more difficult for U.S. 

citizens to bring their loved ones to the 

United States. While the Department 

appreciates the financial difficulties that 

increased fees can create, it has 

determined that it must recover the cost 

of providing the service. The 

Department is adjusting the fee for Kcategory fiance ́(e) visas from $131 to 

$350 specifically because adjudicating 

the K visa requires a review of extensive 

documentation and a more in-depth 

interview of the applicant than other 

categories of Machine Readable Visas 

(MRVs). 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. The 

more extensive K visa processing 

procedure 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 (discussing some of the extra 

steps needed to process a K visa). 

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, the 

Department of State’s processing of K 

visas 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 $330 application 

processing fee as well as a $74 

immigrant visa security surcharge, Items 

32 and 36 on the Schedule of Fees. 

The Department received three 

comments from the same commenter 

concerning instances in which specific 

subsets of E-category or H-category visas 

appear to the commenter to require 

simpler processing, and suggesting that 

those subsets should pay lower fees 

than standard E and H applicants. The 

Department decided to charge a higher 

fee for visa categories that require more 

complex processing, seeing this as a 

more equitable solution than spreading 

the additional cost to produce certain 

visa categories (H, L, O, P, Q, R, E, and 

K) across all visa categories. The 

commenter appears not to challenge this 

decision as concerns tiered fees for visa 

categories more broadly. He argued, 

however, that there is no reason to 

charge more than $140—the base MRV 

fee—to Singaporean and Chilean H–1B1 

visa applicants; such applicants, if 

approved, qualify for non-petition-based 

visas to work in a specialty occupation 

under legislation implementing treaties 

between the United States and those 

countries. The commenter made a 

similar argument with respect to E–3 

visas issued to Australian applicants 

pursuant to legislation that authorizes 

non-petition based visas for Australians 

to work in a specialty occupation; he 

argued that E–3s should cost the same 

as H–1B1 visas for Singaporean and 

Chilean applicants and thus have the 

same fee. Another commenter suggested 

that the costs of processing E visas for 

spouses and children must be less than 

for principal applicants, and that 

therefore these derivative applicants 

should be charged a lower fee. 

Yet as the proposed and interim final 

rules explained, the CoSM showed that 

some categories of visa require more 

time and resources to process than 

others. On average, H-category visas 

require 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. E-category 

visas require considerably more tasks on 

average than H-category visas and most 

other MRV categories. The Department 

has previously explained that, 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 a petition), and 

assess the eligibility of the applicant; 

this process is more like that required 

for other E visas than the process for 

most H visas, for which DHS has 

already adjudicated a petition. See 75 

FR 28188, 28191. 

In addition, the fees established by 

this rule are based on unit costs—global 

average costs for service types as a 

whole. The most recent CoSM, on 

which the new Schedule of Fees is 

based, improved substantially upon 

prior cost of service models by 

identifying unit costs not just for 

nonimmigrant visas as a whole, but for 

specific visa classes that involved more 

work (e.g., H, E, K, etc.). This CoSM did 

not, however, distinguish between 

subcategories of visas (e.g., E–1 versus 

E–3; H versus H–1B1). Instead, the cost 

model averaged together the cost of 

processing all subcategories of a 

particular type of visa. Admittedly, the 

amount of resources required to 

adjudicate individual applicants can 

vary significantly from case to case. As 

an example, a B1/B2 applicant could be 

a individual with a long history of good 

travel to the United States, and the 

adjudication could be made in just 

minutes; a different B1/B2 applicant 

could, however, be seeking to travel to 

the United States for extensive medical 

care over a period of years, which 

would require the officer to spend much 

more time considering the case before 

making a decision. The Department 

does not, however, charge these 

applicants different fees based on the 

time spent. The cost of the more timeconsuming case and the cost of the less 

time-consuming case are both taken into 

account in determining an average unit 

cost for the visa category. In the same 

vein, the time spent adjudicating a 

principal applicant for an E–1 visa 

generally will take more time than that 

required to adjudicate that applicant’s 

minor, accompanying children; the 

application fee charged to those 

applicants is based on a unit cost that 

takes into account both the higher-cost 

and the lower-cost processing. The 

Government Accountability Office 


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76034 Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Rules and Regulations 

(GAO) has noted that government 

agencies should define the classes of 

persons subject to their fees by the 

‘‘smallest unit that is practical.’’ GAO, 3 

Principles of Federal Appropriations 

Law (3d ed. 2008) 12–161 (citing 

Electronic Industries Ass’n v. FCC, 554 

F. 2d 1109, 1116 (DC Cir. 1976)). The 

Department determined that 

establishing four separate tiers of fees in 

this latest Schedule, based on visa 

category, was equitable and practical. 

The Department will explore the 

practicability of expanding in a future 

fee schedule the number of separate unit 

costs examined in the CoSM to the visa 

subcategory level, while keeping in 

mind the need to balance the 

administrative burden with the 

potential benefit to applicants. 

A comment submitted jointly by 

United Airlines, Inc., and the U.S. 

Travel Association expressed concerns 

about how the CoSM ensured that 

administrative support costs were 

correctly attributed to individual 

consular services, and urged that costs 

for positions not dedicated to fee-based 

consular activities be excluded from the 

CoSM. As previously stated, to address 

the sharing and allocation of 

administrative support costs at 

embassies and consulates, the 

Department uses the International 

Cooperative Administrative Support 

Services (ICASS). The CoSM 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 was then 

assigned within the model to all 

overseas services. While the Department 

will continue to endeavor to assign and 

allocate costs in the most accurate 

manner possible, its CoSM includes all 

costs for consular services—whether a 

fee is charged for those services or not. 

The Department will review, and 

continuously seek to keep accurate, the 

calculations used for allocating ICASS 

costs to specific service types. 

Regulatory Findings 

Administrative Procedure Act 

The provisions of 5 U.S.C. 553 and 

554 have been followed through the 

course of this rule making, and the 

Department cannot identify any adverse 

impact on the conduct of foreign affairs 

from the use of these procedures. This 

final rule is effective upon publication. 

This rule was previously published as 

an interim final rule on May 20, 2010, 

with an effective date 15 days from the 

date of that publication (i.e., on June 4, 

2010). The Department provided ‘‘good 

cause’’ justification at that time under 5 

U.S.C. 553(d)(3). See 75 F.R. at 28192– 

28193. 

Regulatory Flexibility Act 

This rulemaking is subject to the 

Regulatory Flexibility Act, 5 U.S.C. 601 

et seq; however, no action is required 

under this Act. The Department 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. 1501–1504. 

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 CoSM 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 in other notices 

associated with this rulemaking (RIN 

1400–AC57). See, e.g., 31 U.S.C. 

9701(b)(2)(A) (agency head may 

prescribe regulations establishing charge 

for service or thing of value provided by 

agency based on, inter alia, costs to 

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 Order 13563 

The Department of State has 

considered this rule in light of 

Executive Order 13563, dated January 

18, 2011, and affirms that this regulation 

is consistent with the guidance therein. 

Executive Orders 12372 and 13132 

This rule 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 rule. 

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 


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Federal Register / Vol. 76, No. 234 / Tuesday, December 6, 2011 / Rules and Regulations 76035 

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 subject to 

the Paperwork Reduction Act, 44 U.S.C. 

Chapter 35. 

List of Subjects in 22 CFR Part 22 

Consular services, fees, passports and 

visas. 

Accordingly, for the reasons stated in 

the preamble, 22 CFR part 22 is 

amended as follows: 

PART 22—[AMENDED] 

■ 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, 1713, 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). 

■ 2. Revise § 22.1 Item 21 to read as 

follows: 

§ 22.1 Schedule of fees. 

* * * * * 

SCHEDULE OF FEES FOR CONSULAR SERVICES

Item No. Fee 

*******

Nonimmigrant Visa Services 

21. Nonimmigrant visa and border crossing card application processing fees (per person): 

(a) Non-petition-based nonimmigrant visa (except E category) ........................................................................................................... $140 

(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 years) .............................................................................................................. $140 

(f) Border crossing card—under age 15; for Mexican 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) ................................................................................... $14 

* * * * * * * 

Dated: August 9, 2011. 

Patrick F. Kennedy, 

Under Secretary of State for Management, 

Department of State. 

[FR Doc. 2011–31175 Filed 12–5–11; 8:45 am] 

BILLING CODE 4710–06–P 

DEPARTMENT OF STATE 

22 CFR Part 126 

RIN 1400–AD00 

[Public Notice 7708] 

Amendment to the International Traffic 

in Arms Regulations: Additional 

Method of Electronic Payment of 

Registration Fees 

AGENCY: Department of State. 

ACTION: Final rule. 

SUMMARY: The Department of State is 

amending the International Traffic in 

Arms Regulations (ITAR) to identify the 

Federal Reserve Wire Network 

(FedWire) as another method of 

electronic payment of registration fees, 

so as to provide a choice in and 

facilitate the submission of fees by 

registrants. 

DATES: This rule is effective December 6, 

2011. 

FOR FURTHER INFORMATION CONTACT: 

Tanya A. Phillips, Office of Defense 

Trade Controls Compliance, U.S. 

Department of State, telephone (202) 

632–2797, or email 

DDTCResponseTeam@state.gov. ATTN: 

Registration—Additional Method of 

Electronic Payment of Registration Fees. 

SUPPLEMENTARY INFORMATION: The 

Directorate of Defense Trade Controls 

(DDTC) is responsible for the collection 

of registration fees from persons in the 

business of manufacturing, exporting, 

and/or brokering defense articles or 

defense services. 

On February 24, 2011, the Department 

proposed electronic payment as the sole 

method of the submission of registration 

fees (see the proposed rule, 

‘‘Amendment to the International 

Traffic in Arms Regulations: Electronic 

Payment of Registration Fees; 60-Day 

Notice of the Proposed Statement of 

Registration Information Collection,’’ 76 

FR 10291). That proposal received no 

public comment within the established 

comment period. The final rule (76 FR 

45195, July 28, 2011) took effect on 

September 26, 2011, and identified 

Automated Clearing House (ACH) as the 

means by which U.S. entities may 

electronically submit their registration 

fees. 

Since the implementation of that rule, 

a considerable number of intended 

registrants have contacted the 

Department, inquiring if payment may 

be made using the Federal Reserve Wire 

Network (FedWire), as they were 

experiencing difficulties in originating 

ACH transactions. This rule seeks to 

address these concerns. Therefore, to 

§§ 122.2 and 129.4 of the ITAR, where 

registration fee payment is described, 

FedWire is added as an acceptable 

electronic payment method. 

Regulatory Analysis and Notices 

Administrative Procedure Act 

The Department of State is of the 

opinion that controlling the import and 

export of defense articles and services is 

a foreign affairs function of the United 

States Government and that rules 

implementing this function are exempt 

from section 553 (Rulemaking) and 

section 554 (Adjudications) of the 

Administrative Procedure Act. Since the 

Department is of the opinion that this 

rule is exempt from 5 U.S.C. 553, it is 

the view of the Department of State that 

the provisions of section 553(d) do not 

apply to this rulemaking. 

Regulatory Flexibility Act 

Since this amendment is not subject 

to 5 U.S.C. 553, it does not require 

analysis under the Regulatory 

Flexibility Act. 

Unfunded Mandates Act of 1995 

This amendment does not involve a 

mandate that will 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. 


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