Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Rules and Regulations 29285

has been prepared. The final rule has

been analyzed in accordance with the

principles and criteria contained in

Executive Order 12612, and it has been

determined that it does not have

sufficient federalism implications to

warrant the preparation of a Federalism

Assessment. The rule has also been

reviewed under the Regulatory

Flexibility Act. I certify that this rule

would not have a significant economic

impact on a substantial number of small

entities under the meaning of the

Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 373

Claims, Equal access to justice,

Lawyers.

For the reasons set forth above, the

Department of Transportation is taking

the following action:

1. The authority citation for Part 373

is:

Authority: 5 U.S.C. 504.

PART 373—[REMOVED]

2. Part 373 is removed.

Issued this 31st day of May 1996 at

Washington, DC.

Charles A. Hunnicutt,

Assistant Secretary for Aviation and

International Affairs.

[FR Doc. 96–14615 Filed 6–7–96; 8:45 am]

BILLING CODE 4910–62–P

UNITED STATES INFORMATION

AGENCY

22 CFR Part 514

Exchange Visitor Program

AGENCY: United States Information

Agency.

ACTION: Final rule.

SUMMARY: The Agency published an

interim final rule with request for

comment in the Federal Register on

April 8, 1996. This rule amended

Agency regulations to clarify the

procedures for requesting an extension

of program duration for designated

sponsors seeking such extension on

behalf or a professor or research scholar

participating in activities conducted by

the sponsor. This interim rule also set

forth new procedures whereby the

Agency may authorize a sponsor to

design and conduct research programs

that allow for the participation of a

professor or research scholar for a

period of time in excess of three years.

Limitations governing the eligibility for

program participation of professor and

research scholar participants were also

set forth. These limitations enhance the

integrity and programmatic

effectiveness of the Exchange Visitor

Program. The Agency hereby adopts this

interim rule, with amendments, as final.

DATES: This rule is effective June 10,

1996 except for 22 CFR 514.20(j)(2)(i)

which will become effective on October

4, 1996.

FOR FURTHER INFORMATION CONTACT:

Stanley S. Colvin, Assistant General

Counsel, United States Information

Agency, 301 4th Street, SW.,

Washington, DC 20547; Telephone,

(202) 619–4979.

SUPPLEMENTARY INFORMATION: Professor

and research scholar participants

comprise some thirty percent of all

exchange visitors participating in the

Agency-administered Exchange Visitor

Program and are, accordingly, of

particular interest to the Agency given

their involvement in collaborative

research projects throughout the United

States and the potential for the

promotion of mutual understanding and

peaceful relations that such

collaborative activities provide. Also of

interest to the Agency is the fact that

such participants occupy approximately

55,000 positions in U.S. academic

institutions and corporate research

facilities.

Unlike all other nonimmigrant visa

categories, the J visa allows for the

employment in the United States of

accompanying spouses. Thus, there are

potentially 55,000 spouses working in

the United States based solely upon

their derivative J–2 visa status. Also,

unlike the employment of all other

nonimmigrants in the United States,

neither the employment of the J visa

holder principal, nor his or her

accompanying spouse is subject to the

requirements of a Labor Condition

Application or U.S. Department of Labor

review. Given the above considerations,

the Agency is compelled to examine

closely those policies and regulations

that govern the long-term employment

of exchange visitors in the United

States.

The Agency published an interim rule

on April 8, 1996 that addressed, in part,

an alien’s eligibility to pursue teaching

or research opportunities in the United

States under the aegis of the Exchange

Visitor Program. This interim rule

introduced a prohibition against

program participation as a professor or

research scholar for aliens that had held

or been afforded J visa status during any

portion of the twelve month period

immediately preceding the

commencement of such participation.

This prohibition was introduced in an

effort to end the movement of students

in J visa status into the professor and

research scholar category and also to

prevent aliens who have completed a

three year period of program

participation as a professor or research

scholar from exiting the U.S. and

immediately re-entering in a ‘‘new’’

program for an additional three year

period.

The Agency received 38 comments in

response to the request for comment set

forth in the April 8th interim rule, all of

which directly or indirectly touched

upon this provision. The commentators

generally agreed that, given the

Agency’s desire to ensure that exchange

visitors return to their home country in

order to safeguard the integrity and

programmatic effectiveness of the

Exchange Visitor Program, the practice

of exiting and re-entering in a new

program should be curtailed. These

commentators suggested, however, that

the regulation, as written, complicated

or prevented the use of the Exchange

Visitor Program by person engaging in

short-term collaborative projects. Many

commentators suggested alternatives to

the Agency’s approach and as a result of

such comments, the Agency is

amending the provisions set forth at

§ 514.20(d). This amendment exempts

from the twelve month bar those

exchange visitors who participated in an

exchange visitor program for six months

or less. As a related matter, the Agency

is amending the program duration of the

short-term scholar category from four

months to six months both to reflect this

change and to facilitate this category’s

use for short-term collaborative projects.

Further, based upon comments

received, the Agency is amending the

language governing the calculation of

the twelve month bar set forth at

§ 514.20(d)(ii). The interim rule set forth

language, subject to interpretation, as to

how the twelve month period should be

calculated. In an effort to provide

clarity, the Agency amends this

language by adopting physical presence

in the United States in J status as the

standard for application of the twelve

month bar and adopts the date of

program commencement, as set forth on

the Form IAP–66, as the standard to

determine the calculation of time.

A number of commentators also

suggested that it is unfair to subject the

J–2 spouse to this twelve month bar.

The Agency disagrees. While some J–2

spouses may have made some sacrifices

in order to accompany the J–1 exchange

visitor, such sacrifice is compensated by

employment opportunities in the United

States—often in research. Thus, the real

issue is whether it is unfair to deny a

J–2 spouse the opportunity to remain in

J status and pursue continued
29286 Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Rules and Regulations

employment upon completion of the J–

1 principal’s program participation.

If the J–2 is not subjected to the

twelve month bar, the underlying

objective for imposing the bar is

defeated in that the J–2 could become a

J–1 and the former J–1 would be

afforded J–2 derivative status and thus,

as discussed above, full employment

authorization. This ‘‘flip-flop’’ of status

could continue back and forth for years,

even decades, at the expense of program

effectiveness and integrity. Accordingly,

the Agency concludes that upon

balancing the various interests of the

Agency, designated sponsors, and

exchange visitors, application of the bar

to J–2 spouses is both reasonable and

desirable.

In a related matter to categorical

eligibility, and in response to specific

comment received from NAFSA, the

Agency adopts language to clarify that

participants may not be placed on a

tenure track as opposed to the interim

rule’s language that states the

participant may not be placed in a

tenure-track position.

The Agency also received numerous

comments regarding the provisions of

§ 514.20(i)(2) whereby the Agency may

authorize designated sponsors to

conduct an exchange activity requiring

participation in excess of three years by

a professor or research scholar. This

provision would allow a sponsor to

identify a discrete activity, such as the

International Thermonuclear

Experimental Reactor, for which the

sponsor and the activity underwriters

have identified the desirability of a

participant’s involvement for a period of

time in excess of three years. The

requirement for the identification of a

discrete activity, by definition, does not

contemplate those situations in which a

sponsor desires to conduct generalized

research for periods of time in excess of

three years. The Agency will authorize

up to an additional three years of

program duration.

The provisions of the interim rule

limited involvement in such activities to

foreign educated research scholars.

Many commentators questioned

whether the benefits of such a limitation

outweighed potential losses. In light of

the comments received, the Agency

concludes that its program and policy

objectives may be achieved by means

other than the limitation to foreign

educated participants. Accordingly, the

Agency is eliminating this requirement

and adopting in its place a provision

that participants in such extended

activities be financed directly by U.S.

foreign government funding. ‘‘Financed

directly’’ is defined at § 514.2 and

requires that the exchange visitor

receives funds contributed directly to

the exchange visitor in connection with

his or her participation in an exchange

visitor program. The Agency concludes

that this approach will allow the

underwriters of such significant

research projects to identify and select

participants according to their needs

while signalling their bona fide interest

in such person by their direct funding

of his or her participation in the project.

Comments regarding § 514.20(j) which

governs the extension of a participant’s

program participation generally

suggested the need for clarification of

what the Agency considers to be

‘‘exceptional or unusual

circumstances.’’ The Agency stated in

the interim rule, that it contemplates

‘‘exceptional or unusual circumstances’’

will generally involve situations in

which the participant was unable to

complete his or her program due to

circumstances not directly related to his

or her project. This general statement

should not be misconstrued or overemphasized. The Agency recognizes

that ‘‘exceptional or unusual’’

circumstances may arise that are

directly related to a participant’s

research project. While ‘‘exceptional or

unusual’’ circumstances must be

examined on a case by case basis and in

the context of all facts presented, some

guidance may be provided. For

example, a foreign government’s direct

funding of a participant and that

government’s desire to have the

participant continue in his or her

project for an additional year would be

considered as an ‘‘exceptional or

unusual’’ circumstance sufficient to

justify extension of the participant’s

program. Other examples of

‘‘exceptional or unusual’’ circumstances

include the illness or incapacity of a

participant that prevents the participant

from working on his or her project for

an extended period of time, and

catastrophes involving the research

experiments. Also, the test may be met

when the visitor requires an extension

of a few weeks to complete the project

due to unforseen delays in the research.

A number of commentators suggested

that these changes diminish a sponsor’s

ability to utilize the Exchange Visitor

Program for research requiring more

than three years to complete. The

Agency does not agree with these

comments, concluding instead, that

these changes merely reinforce the

Agency’s long-held position that the

Exchange Visitor Program should be

utilized for programs that have been

designed for participation of not more

than three years and that may, under

ordinary circumstances, be completed

on schedule. Moreover, the Agency

concludes, as a matter of policy, that

three years of research provides ample

opportunity to both complete

meaningful research and develop

valuable relationships that will foster

on-going linkages between U.S.

institutions and scientists upon the

participant’s return to his or her home

country. Thus, while the Agency

acknowledges that these changes may

result in some individuals being unable

to utilize the Exchange Visitor Program,

the Agency concludes that managerial

and program needs, such as the benefits

of ensuring that a higher percentage of

participants return to their home

country in a timely manner and fulfill

the underlying exchange policy

objectives upon which their entry into

the United States was premised,

outweighs the possible loss of exchange

opportunities.

The Agency also, in light of comments

received, has determined that the

language of § 514.20(j)(2)(i) should be

amended to recognize that extraordinary

events may arise after the ninety day

period for filing an extension of program

request has passed. The Agency adopted

the ninety day filing requirement to

ensure that a participant does not fall

out of valid program status and thereby

subject his or her sponsor to sanctions

for employing aliens without proper

work authorization. The necessity for a

timely filing requirement remains;

however, the Agency does agree that an

‘‘extraordinary circumstance’’ clause

would be appropriate. Accordingly, the

Agency amends the language of this

paragraph to include such clause but

cautions all sponsors that the

participant’s work authorization expires

on the date listed on the participant’s

IAP–66 form unless an extension has

been granted by the Agency. The

Agency also is amending the ninety day

filing requirement to sixty days to

provide for greater flexibility in the

filing of an extension request.

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 federal implications warranting the

preparation of a Federalism Assessment

in accordance with E.O. 12612.

In adopting this final rule, with

amendments, the Agency has set forth

the entire language of the interim rule

with amendments incorporated therein

to assist the reader.

List of Subjects in 22 CFR Part 514

Cultural exchange programs.
Federal Register / Vol. 61, No. 112 / Monday, June 10, 1996 / Rules and Regulations 29287

Dated: June 3, 1996.

Les Jin,

General Counsel.

Accordingly the interim rule

amending 22 CFR Part 514 which was

published at 61 FR 15372 on April 8,

1996, is adopted as a final rule with the

following changes:

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. Section 514.20 is amended by

revising paragraphs (d), (i), and (j) to

read as follows:

§ 514.20 Professors and research

scholars.

* * * * *

(d) Visitor eligibility. An individual

may be selected for participation in the

Exchange Visitor Program as a professor

or research scholar subject to the

following conditions:

(i) The participant shall not be a

candidate for tenure track position; and

(ii) The participant has not been

physically present in the United States

as a nonimmigrant pursuant to the

provisions of 8 U.S.C. 1101(a)(15)(J) for

all or part of the twelve month period

immediately preceding the date of

program commencement set forth on his

or her Form IAP–66, unless:

(A) The participant is transferring to

the sponsor’s program as provided in

§ 514.42; or

(B) The participant’s presence in the

United States was of less than six

months duration; or

(C) The participant’s presence in the

United States was pursuant to a Shortterm scholar exchange activity as

authorized by § 514.21.

* * * * *

(i) Duration of participation. The

permitted duration of program

participation for a professor or research

scholar shall be as follows:

(1) General limitation. The professor

and research scholar shall be authorized

to participate in the Exchange Visitor

Program for the length of time necessary

to complete his or her program, which

time shall not exceed three years.

(2) Exceptional circumstance. The

Agency may authorize a designated

Exchange Visitor Program sponsor to

conduct an exchange activity requiring

a period of program duration in excess

of three years. A sponsor seeking to

conduct a discrete activity requiring

more than the permitted three years of

program duration, but less than six

years of program duration, shall make

written request to the Agency and

secure written Agency approval. Such

request shall include:

(i) A detailed explanation of the

discrete exchange activity; and

(ii) A certification that the

participation of selected research

scholars will be financed directly by

United States or foreign government

funds.

(3) Change of category. A change

between the categories of professor and

research scholar shall not extend an

exchange visitor’s permitted period of

participation beyond three years.

(j) Extension of program. Professors

and research scholars may be authorized

program extensions as follows:

(1) Responsible officer authorization.

A responsible officer may extend, in his

or her discretion and for a period not to

exceed six months, the three year period

of program participation permitted

under § 514.20(i). The responsible

officer exercising his or her discretion

shall do so only upon his or her

affirmative determination that such

extension is necessary in order to permit

the research scholar or professor to

complete a specific project or research

activity.

(2) Agency authorization. The Agency

may extend, upon request and in its sole

discretion, the three year period of

program participation permitted under

§ 514.20(i). A request for Agency

authorization to extend the period of

program participation for a professor or

research scholar shall:

(i) Be submitted to the Agency, unless

prevented by extraordinary

circumstance, no less than 60 days prior

to the expiration of the participant’s

permitted three year period of program

participation; and

(ii) Present evidence, satisfactory to

the Agency, that such request is justified

due to exceptional or unusual

circumstances and is necessary in order

to permit the researcher or professor to

complete a specific project or research

activity.

(3) Timeliness. The Agency will not

review a request for Agency

authorization to extend the three year

period of program participation

permitted under § 514.20(i) unless

timely filed; provided, however, that the

Agency reserves the right to review a

request that is not timely filed due to

extraordinary circumstance.

(4) Final decision. The Agency

anticipates it will respond to requests

for Agency authorization to extend the

three year period of program

participation permitted under

§ 514.20(i) within 30 days of Agency

receipt of such request and supporting

documentation. Such response shall

constitute the Agency’s final decision.

[FR Doc. 96–14390 Filed 6–7–96; 8:45 am]

BILLING CODE 8230–01–M

DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 75

RIN 1219–AA11

Safety Standards for Underground

Coal Mine Ventilation

AGENCY: Mine Safety and Health

Administration (MSHA), Labor.

ACTION: Final rule; corrections.

SUMMARY: This document corrects errors

in the final rule for underground coal

mine ventilation which appeared in the

Federal Register on March 11, 1996 (61

FR 9764).

EFFECTIVE DATE: June 10, 1996.

FOR FURTHER INFORMATION CONTACT:

Patricia W. Silvey, Director, Office of

Standards, Regulations, and Variances,

MSHA, (703) 235–1910.

SUPPLEMENTARY INFORMATION: On March

11, 1996, MSHA published a final rule

to revise its safety standards for

underground coal mine ventilation. This

document corrects errors that appeared

in the final rule.

Sections 75.325, 75.326, and 75.330

each refer to provisions in the final rule

that limit exposure to methane,

respirable dust, or other harmful gases.

In each case it was not the Agency’s

intent to modify the limits set in these

standards. No changes were proposed

and the current versions that appear in

the 1995 compilation of the Code of

Federal Regulations are correct.

Therefore, to address questions raised

and to clarify the intent of the Agency,

the language in these standards is being

corrected to re-state the language of the

existing standards.

Sections 75.301, 75.333(d) (1), (e)(3),

and (f), and 75.335(a)(1)(iv) and (a)(2)

are being corrected to include

information concerning the availability

of the incorporated documents, where

the incorporated documents may be

inspected, and the Federal Register

approval for incorporation by reference

of the documents. No changes were

proposed and the current versions that

appear in the 1995 compilation of the

Code of Federal Regulations are correct.

The final rule language for § 75.333

Ventilation controls, inadvertently