34808 Federal Register / Vol. 63, No. 123 / Friday, June 26, 1998 /Rules and Regulations

While the policy statement focuses on

the principal language of the

advertisement, the smokeless tobacco

regulation looks to the predominant

language of the publication in

determining the language in which the

Surgeon General’s health warning must

appear. The Commission believes that, for

advertisements in publications, the

smokeless tobacco language is better

calculated to ensure compliance with

the original intent of the 1973

Enforcement Policy Statement—that

disclosures be communicated effectively

to the advertisement’s target audience. By amending the policy statement as

proposed, the Commission would not be

creating a new regulation. The policy

statement amendment merely would

clarify the original intent of the 1973

Enforcement Policy Statement—that all

American consumers, regardless of the

language they speak, have access to

important information regarding the

products they purchase.

List of Subjects in 16 CFR Part 14

Trade practices.

Accordingly, for the reasons set forth

in the preamble, the Commission hereby

amends Title 16, Part 14 of the Code of

Federal Regulations as follows:

PART 14—ADMINISTRATIVE

INTERPRETATIONS, GENERAL

POLICY STATEMENTS, AND

ENFORCEMENT POLICY

STATEMENTS

1. The authority citation for part 14

continues to read as follows:

Authority: 15 U.S.C. 41–58

2. Section 14.9 is amended by revising

paragraphs (a) and (b) to read as follows:

§ 14.9 Requirements concerning clear and

conspicuous disclosures in foreign

language advertising and sales materials.

* * * * *

(a) Where cease-and-desist orders as

well as rules, guides and other

statements require ‘‘clear and

conspicuous’’ disclosure of certain

information in an advertisement or sales

material in a newspaper, magazine,

periodical, or other publication that is

not in English, the disclosure shall

appear in the predominant language of

the publication in which the

advertisement or sales material appears.

In the case of any other advertisement

or sales material, the disclosure shall

appear in the language of the target

audience (ordinarily the language

principally used in the advertisement or

sales material).

(b) Any respondent who fails to

comply with this requirement may be

the subject of a civil penalty or other

law enforcement proceeding for

violating the terms of a Commission

cease-and-desist order or rule.

By direction of the Commission

Donald S. Clark,

Secretary.

[FR Doc. 98–16953 Filed 6–25–98; 8:45 am]

BILLING CODE 6750–01–M

DEPARTMENT OF THE TREASURY

Customs Service

19 CFR Parts 19, 24, 111, 113, 143, 162,

163, 178, and 181

(T.D. 98–56)

RIN 1515–AB77

Recordkeeping Requirements

AGENCY: Customs Service; Department

of the Treasury.

ACTION: Final rule; correction.

SUMMARY: This document makes a

correction to the document published in

the Federal Register which set forth

final amendments to the Customs

Regulations to reflect changes to the

Customs laws regarding recordkeeping

and related requirements. The

correction involves an incorrect citation

within § 163.6 of the final regulatory

texts.

EFFECTIVE DATE: This correction is

effective July 16, 1998.

FOR FURTHER INFORMATION CONTACT:

Francis W. Foote, Regulations Branch,

Office of Regulations and Rulings (202–

927–0163).

SUPPLEMENTARY INFORMATION:

Background

On June 16, 1998, Customs published

in the Federal Register (63 FR 32916) as

T.D. 98–56 a final rule document setting

forth final amendments to the Customs

Regulations to reflect changes to the

Customs laws regarding recordkeeping

requirements, examination of records

and witnesses, regulatory audit

procedures, and judicial enforcement

contained in the Customs

Modernization provisions of the North

American Free Trade Agreement

Implementation Act (Pub. L. 103–182,

107 Stat. 2057). The majority of those

final regulatory texts are contained in

new part 163 (19 CFR part 163) which

reflects general recordkeeping

requirements applicable to persons who

engage in specified types of customs

transactions.

Within new part 163, § 163.6 includes

requirements concerning the production

and examination of entry records and

prescribes the monetary penalty

assessment and additional actions that

Customs may take for a failure to

comply with those requirements. Within

§ 163.6, paragraph (b)(2)(i) specifies the

additional actions that Customs may

take and paragraph (b)(2)(ii) sets forth

an exception to the paragraph (b)(2)(i)

general rule. However, the text of

paragraph (b)(2)(ii), as published,

improperly included a reference to

paragraph ‘‘(b)(2)(ii)(B)’’ which should

have read ‘‘(b)(2)(i)(B)’’. This document

corrects this typographical error.

Correction to the Final Regulations

§ 163.6 [Corrected]

On page 32948, in the third column,

in § 163.6, in paragraph (b)(2)(ii), the

reference ‘‘(b)(2)(ii)(B)’’ is corrected to

read ‘‘(b)(2)(i)(B)’’.

Dated: June 22, 1998.

Harold M. Singer,

Chief, Regulations Branch.

[FR Doc. 98–17060 Filed 6–25–98; 8:45 am]

BILLING CODE 4820–02–P

UNITED STATES INFORMATION

AGENCY

22 CFR Part 514

Exchange Visitor Program

AGENCY: United States Information

Agency.

ACTION: Interim final rule.

SUMMARY: The Agency adopts a fee

sufficient for it to recover the full cost

of its administrative processing of

requests for waiver of the two-year

return to the home country requirement

set forth in Section 212(e) of the

Immigration and Naturalization Act (8

U.S.C. 1182(e)).

DATES: This interim rule is effective

June 26, 1998. The specified fee will be

assessed for all waiver applications

post-marked after July 27, 1998. Written

comments must be submitted on or

before July 27, 1998.

ADDRESSES: Written comments should

be submitted to: Public Comment Clerk,

Office of General Counsel, United States

Information Agency, 301 4th Street,

SW., Washington, DC 20547.

FOR FURTHER INFORMATION CONTACT:

Stanley S. Colvin, Assistant General

Counsel, Office of the General Counsel,

301 4th Street, SW., Washington, DC

20547; telephone, (202) 619–6531.

SUPPLEMENTARY INFORMATION: Pursuant

to the provisions of the Fulbright-Hays

Act of 1961 (Pub. L. 87–256) the Agency

administers the Exchange Visitor

Program by facilitating the entry of over
Federal Register / Vol. 63, No. 123 / Friday, June 26, 1998 /Rules and Regulations 34809

200,000 program participants each year.

The Exchange Visitor Program is a

component of the public diplomacy

efforts of the United States Government

and fosters mutual understanding and

peaceful relations between the United

States and other countries through

educational and cultural exchange

activities. Program participants enter the

United States in nonimmigrant J-visa

status. A statutory requirement has been

imposed to ensure that certain program

participants return to their home

country and share with their

countrymen the education, skills, and

understanding of the United States

acquired as a program participant.

Commonly referred to as the Section

212(e) return to the home country

requirement, this statutory provision

applies to a program participant who

has entered the United States and

received government funding to

participate in an exchange activity, or

who has pursued graduate medical

education or training as a participant, or

who has pursued study or training in a

field of interest to his or her home

government as evidenced by such field’s

inclusion on the identified ‘‘skills list’’

for that country. If subject to the

provisions of Section 212(e), a program

participant may not adjust his or her

nonimmigrant status to that afforded

under the provisions of 8 U.S.C. 1101

(h) or (l) or to legal permanent resident

unless the participants has been either

physically present in his or her home

country for a period of two years

following completion of his or her

Exchange Visitor Program or has

received a waiver of this requirement.

Based upon the statutory and

administrative authorities set forth

below, the Agency has determined that

its review of and recommendation

regarding requests for the waiver of the

two year return to the home country

requirement confers a specific benefit to

the requesting individual. Accordingly,

a fee sufficient to recoup the costs of

conferring this specific benefit is

appropriate.

Legislative Authority

The Department of Commerce, Justice,

and State, the Judiciary, and Related

Agencies Appropriations Act of 1998

(Pub. L. 105–119) authorizes the Agency

to collect fees related to its provision of

Exchange Visitor Program services.

Specifically, this appropriations statute

authorizes the Agency to charge a fee

and recycle such monies by providing

‘‘* * * That not to exceed $6,000,000,

to remain available until expended, may

be credited to this appropriation from

fees or other payments received from or

in connection with English teaching,

library, motion pictures, and

publication programs as authorized by

section 810 of such Act of 1948 (22

U.S.C. 1475e) and, notwithstanding any

other law, fees from educational

advising and counseling, and exchange

visitor program services * * *.’’

In adopting a fee for exchange visitor

program services provided to the public,

the Agency is also guided by the

provisions of the Independent Offices

Appropriations Act of 1952 (Pub. L. 82–

137), 31 U.S.C. 9701. This statute

permits an agency to prescribe

regulations establishing the charge for a

service or thing of value provided by the

agency. Such regulations so adopted are

subject to policies prescribed by the

President. The statute directs that any

charge adopted shall be (i) fair; and (ii)

based on the costs to the Government,

the value of the service to the recipient,

the public policy or interest served, and

other relevant facts. The Agency has

determined that an application to the

Agency for a waiver recommendation is

a request for a service within the

meaning of these statutes that confers a

specific benefit upon an identifiable

beneficiary. Further, the Agency also

relies upon the decisions in Auyda, Inc.

v. Attorney General, 661 F. Supp. 33

(1987); and Engine Manufacturers

Association v. E.P.A., 20 F.3d 1177

(1994) in adopting a fee for the review

of such applications.

Finally, the Agency’s adoption and

implementation of a fee for review of

waiver applications will be subject to

the provisions of the Chief Financial

Officers Act of 1990 (Pub. L. 101–576.)

Section 205(a)(8) of this Act requires the

Agency’s Chief Financial Officer to

‘‘review, on a biennial basis, the fee,

royalties, rents, and other charges

imposed by the agency for services and

things of value it provides, and make

recommendations on revising those

charges to reflect costs incurred by it in

providing those services and things of

value.’’ (31 U.S.C. 902(a)(8))

Office of Management and Budget

Circular No. A–25

Pursuant to Circular No. A–25, The

Office of Management and Budget

(OMB) has established the Federal

policy governing fees assessed for

Government services and for the sale or

use of Government goods or resources.

OMB Circular No. A–25 sets forth the

general policy that a ‘‘user charge * * *

will be assessed against each

identifiable recipient for special benefits

derived from Federal activities beyond

those received by the general public.’’

To determine whether a ‘‘special

benefit’’ has accrued, Circular No. A–25

offers the following guidance:

For example, a special benefit will be

considered to accrue and a user charge will

be imposed when a Government service:

(a)(E)nables the beneficiary to obtain more

immediate or substantial gains or values

(which may or may not be measurable in

monetary terms) than those that accrue to the

general public (e.g., receiving a patent,

insurance, or guarantee provision, or a

license to carry on a specific activity or

business or various kinds of public land use);

or (b) (P)rovides business stability or

contributes to public confidence in the

business activity of the beneficiary (e.g.,

insuring deposits in commercial banks); or

(c) (I)s performed at the request of or for the

convenience of the recipient, and is beyond

the services regularly received by other

members of the same industry or group or by

the general public (e.g., receiving a passport,

visa, airman’s certificate, or a Customs

inspection after regular duty hours.)

(OMB Circular A–25, section 6.a.(1))

In calculating the amount of the fee to

be charged for the Agency’s review of an

application for a Section 212(e) waiver

and recommendation thereon, the

Agency will rely upon the guidance set

forth in OMB Circular A–25. Agencies

are directed to recoup the ‘‘full costs’’ of

providing a service or specific benefit.

Full cost is defined as including all

direct and indirect costs to any part of

the Federal Government of providing a

good, resource, or service. These costs

include, but are not limited to, an

appropriate share of:

(a) Directed and indirect personnel costs,

including salaries and fringe benefits such as

medical insurance and retirement.

Retirement costs should include all (funded

or unfunded) accrued costs not covered by

employee contributions as specified in

Circular No. A–11.

(b) Physical overhead, consulting, and

other indirect costs including material and

supply costs, utilities, insurance, travel, and

rents or imputed rents on land, buildings,

and equipment. If imputed rental costs are

applied, they should include:

(i) Depreciation of structures and

equipment, based on official Internal

Revenue Service depreciation guidelines

unless better estimates are available; and

(ii) An annual rate of return (equal to the

average long-term Treasury bond rate) on

land, structures, equipment and other capital

resources used.

(c) The management and supervisory costs.

(d) The costs of enforcement, collection,

research, establishment of standards, and

regulation, including any required

environmental statements.

(e) Full cost shall be determined or

estimated from the best available records of

the agency, and new cost account systems

need not be established solely for this

purpose.

(OMB Circular A–25 Section 6.d)

Circular A–25 further directs the

federal agencies to adopt user charges

by promulgating regulations, to ensure

that proper internal control systems and
34810 Federal Register / Vol. 63, No. 123 / Friday, June 26, 1998 /Rules and Regulations

appropriate audit standards are in place,

and to review user charges biennially to

ensure adjustment of such charges to

reflect unanticipated changes in costs or

market values.

Fee Calculation

Having determined that imposition of

a user fee for Agency review of waiver

requests is a lawful exercise of Agency

authority, the amount of such fee must

be calculated. In calculating the amount

of this fee, the Agency is guided by the

provisions of OMB Circular No. A–25,

User Charges and the Federal

Accounting Standards Advisory Board

Statement of Federal Financial

Accounting Standards No. 4: Managerial

Cost Accounting Concepts and

Standards for the Federal Government.

These standards direct that an agency

identify and recoup the full cost of

providing a benefit or service. Full cost

is defined to mean both the direct and

indirect costs of providing said service

or benefit. The Agency’s organizational

structure facilitates the calculation of

the full cost associated with review of

waiver applications as performance of

this function is centralized in the

Agency’s Office of General Counsel

Waiver Review Branch (Waiver Branch).

The Waiver Branch is headed by a

branch chief who supervises five waiver

officers, four waiver assistants and two

program assistants. These twelve

employees process some 6,000 waiver

applications each year. This processing

is broken dawn along geographic lines

with each officer responsible for specific

countries with the waiver and program

assistants providing necessary support

services. In addition, the Waiver Branch

receives general management oversight

from the Agency’s General Counsel and

Deputy General Counsel and legal

oversight and assistance from an Agency

Assistant General Counsel.

In processing waiver applications, the

Waiver Branch unit is required to

perform the following tasks:

Receive waiver applications, which

includes the tasks of receiving, opening,

and screening applications;

Record fee, which includes, in

cooperation with the Agency’s

Management Bureau, the task of

receipting fees, reconciling registers,

preparing and making deposits, and

recording information into program and

financial systems;

Input application data, which

includes the tasks of entering data from

applications into program systems,

verifying data, and printing system data;

Manage records, which includes the

tasks of creating files; connecting

requested information and documents

with application files; putting, storing,

and moving files; and archiving inactive

files;

Adjudicate application, which

includes the tasks of distributing

workload; reviewing, examine, and

adjudicating applications; making and

recording adjudicative decisions;

requesting and reviewing additional

information as needed; and consulting

with supervisors and legal counsel on

non-routine adjudications;

Prepare outgoing correspondence,

which includes the tasks of preparing

decision letters, copying, and mailing;

Respond to inquiries, which includes

the tasks of receiving and responding to

inquiries on the status of a waiver

application or the request for an

advisory opinion regarding whether an

alien is subject to the two year return to

the home country requirement. These

inquiries may be from applicants, legal

representatives, or members of Congress

and are received by both telephone and

in writing.

As stated above, these identified tasks

are performed on a full-time basis by the

twelve members of the Waiver Branch

with three additional Agency employees

providing supervision and legal services

on a less than full-time basis. Through

application of FASAB Federal Financial

Standards No. 4: Managerial Cost

Accounting Concepts and Standards for

the Federal Government, the Agency has

identified $632,872 in direct costs

attributable to the performance of the

tasks set forth above. Based upon direct

and indirect costs of $816,232, and

6,000 waiver application per year, the

Agency has determined that the per unit

cost of processing a waiver application

is $136 and adopts this amount as the

fee to be collected for the future

processing of waiver applications.

Public Comment

The Agency invites comments from

the public on this interim final rule

notwithstanding the fact that it is under

no legal requirement to do so. The

Designation of exchange visitor

sponsors and the administration of the

Exchange Visitor Program are deemed to

be foreign affairs functions of the United

States Government. The Administrative

Procedures Act, 5 U.S.C. 553(a)(1)(1989)

specifically exempts such functions

from the rulemaking requirements of the

Act.

The Agency will accept comments for

thirty days following publication of this

interim final rule. In accordance with 5

U.S.C. 605(b), the Agency certifies that

this rule does not have a significant

adverse economic impact on a

substantial number of small entities.

This rule is not considered to be a major

rule within the meaning of section 1(b)

of E.O. 12291, nor does it have

federalism implications warranting the

Preparation of a Federalism Assessment

in accordance with E.O. 12612. This

rule is not a major rule as defined by the

Small Business Regulatory Enforcement

Act of 1996 nor is it considered an

economically significant regulatory

action as defined by E.O. 12866. This

rule does not impose any new reporting

or record keeping requirements.

List of Subjects in 22 CFR Part 514

Cultural Exchange Programs.

Dated: June 18, 1998.

Les Jin,

General Counsel.

Accordingly, 22 CFR Part 514 is

amended as follows:

PART 514—EXCHANGE VISITOR

PROGRAM

1. The authority citation for part 514

continues to read as follows:

Authority: 8 U.S.C. 1101 (a)(15)(j), 1182,

1258; 22 U.S.C. 1431–1442, 2451–2460;

Reorganization Plan No. 2 of 1977, 42 FR

62461, 3 CFR 1977 Comp. p. 200; E.O. 12048

43 FR 13361, 3 CFR, 1978 Comp. p. 168;

USIA Delegation Order No. 85–5 (50 FR

27393).

2. Part 514 is amended by adding a

new subpart H consisting of § 514.90 to

read as follows:

Subpart H—Fees.

§ 514.90 Fees.

(a) Remittances. Fees prescribed

within the framework of 31 U.S.C. 9701

shall be submitted as directed by the

Agency and shall be in the amount

prescribed by law or regulation.

Remittances must be drawn on a bank

or other institution located in the

United States and be payable in United

States currency and shall be made

payable to the ‘‘United States

Information Agency.’’ A charge of

$25.00 will be imposed if a check in

payment of a fee is not honored by the

bank on which it is drawn. If an

applicant is residing outside the United

States at the time of application,

remittance may be made by bank

international money order of foreign

draft drawn on an institution in the

United States and payable to the United

States Information Agency in United

States currency.

(b) Amounts of Fees. The following

fees are prescribed:

Request for waiver review and

recommendation—$136.

[FR Doc. 98–16653 Filed 6–25–98; 8:45 am]

BILLING CODE 8230–01–M