[Federal Register Volume 64, Number 186 (Monday, September 27, 1999)]
[Rules and Regulations]
[Pages 51894-51896]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24960]


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UNITED STATES INFORMATION AGENCY

22 CFR Part 514


Exchange Visitor Program

AGENCY: United States Information Agency.

ACTION: Interim final rule.

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SUMMARY: The Agency is issuing regulation on the adoption of a fee 
sufficient for it to recover the full cost of its administrative 
processing of requests by program participants for an extension, change 
of category, or reinstatement of their program status. The Agency is 
also issuing regulation on the adoption of fees to recoup the cost of 
its administrative processing of requests for program designation and 
non-routine requests for the Form IAP-66 submitted by designated 
sponsors on an urgent or expedited basis.

EFFECTIVE DATES: This interim rule is effective January 1, 2000. The 
specified fee will be assessed for all extension, change of category, 
reinstatement, or program designation requests and non-routine requests 
for the Form IAP-66 post-marked after January 1, 2000. Written comments 
regarding this interim rule must be submitted on or before November 30, 
1999.

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: Sally Lawrence, Branch Chief, Program 
Designation Branch, Exchange Visitor Program Services, 301 4th Street, 
SW, Washington, DC 20547; telephone (202) 401-9800.

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 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 pursuant to sponsorship by an Agency-
designated sponsoring organization.
    Program participants are admitted into the United States to pursue 
specific program objectives such as training, undergraduate and post-
graduate study, and medical residency programs. In order to maintain 
valid program status and thereby valid non-immigrant status, it is 
often necessary for program participants to request an extension of 
their program, a change of category for continued program 
participation, or reinstatement to valid program status. An 
organization that wishes to conduct and oversee an exchange visitor 
program and thereby obtain administrative authority to sponsor a non-
immigrant alien's entry into the United States for the purpose of 
participation in such exchange program must request a designation from 
the Agency to do so.
    Based upon the statutory and administrative authorities set forth 
below, the Agency has determined that its review of requests for an 
extension of program, change of category participation, or 
reinstatement to program status confers a specific benefit to the 
requesting individual. In similar fashion, a request for Agency 
designation as an exchange visitor program sponsor confers a specific 
benefit upon the requesting organization. Accordingly, a fee sufficient 
to recoup the costs of conferring these specific benefits is 
appropriate.

Legislative Authority

    The Departments 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 requests for extensions, change of category, reinstatement, 
or program designation 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 * * *

[[Page 51895]]

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.(a))

    In calculating the amount of the fee to be charged for the Agency's 
review of a request for extension, change of category, reinstatement, 
or program designation, the Agency will rely upon the guidance set 
forth in OMB Circular A-25. Agencies are directed to recoup the ``full 
cost'' 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) Direct 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 accounting 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 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 extension, change of category, reinstatement, or program designation 
requests is a lawful exercise of Agency authority, the amount of such 
fees must be calculated. In calculating the amount of these fees, the 
Agency is guided by the provisions of OMB Circular No. A-25, User 
Charges and the Federal Accounting Standards Advisory Board 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 its review of requests for extension, change of 
category, reinstatement, or program designation as performance of these 
functions are centralized in the Agency's Office of General Counsel, 
Program Designation Branch (Program Designation.)
    The Program Designation Branch is headed by a branch chief who 
supervises seven program officers, two program assistants and two 
support staff. These eleven employees process some 786 requests for 
extensions, change of category, and reinstatement and 126 requests for 
program designation each year. This processing is broken down along 
subject matter lines with each officer responsible for specific areas 
of program participation with the program assistants providing 
necessary support services. In addition, the Program Designation 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 extension, change of category, reinstatement, and 
program designation requests, the Program Designation Branch unit is 
required to perform the following tasks:
    Receive extension, change of category, reinstatement, and program 
designation requests, which includes the tasks of receiving, opening, 
sorting, 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 request data, which includes the tasks of entering data from 
requests into program systems, verifying data, and printing system 
data;
    Manage records, which includes the tasks of creating files; 
connecting requested information and documents with request files; 
pulling, storing, and moving files; and archiving inactive files;
    Adjudicate request, which includes the tasks of distributing 
workload; reviewing, examining, 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, logging, filing, faxing, and 
mailing;
    Respond to inquiries, which includes the tasks of receiving and 
responding to inquiries on the status of an extension, change of 
category, reinstatement, or program designation request. These 
inquiries may be from applicants, legal representatives, or members of 
Congress and are received by both telephone and in writing.
    The Agency has examined the number of man-hours devoted to the 
performance of these activities and has determined that 135% of one 
full time equivalent position at the program officer and 100% of one 
full time equivalent position at the program assistant level is 
allocable to the processing of extension, change of category, and 
reinstatement requests. This same analysis reveals that 70% of one full 
time equivalent position at the program officer and program assistant 
level is also allocable to the processing of program designation 
requests. Further, this analysis reveals that 127.5% of a full time 
equivalent position at the program staff assistant level is required to 
fill ``expedited'' or ``urgent'' requests for the Form IAP-66 submitted 
by designated sponsors. Through application of FASAB Federal financial 
standards No. 4: Managerial Cost Accounting Concepts and Standards for 
the Federal Government,

[[Page 51896]]

the Agency has identified $146,336 in direct costs arising from salary 
and benefits and an additional $9,180 in allocable indirect costs 
attributable to the processing of extension, change of category, and 
reinstatement requests. Based upon direct and indirect costs of 
$155,516 and 786 extension, change of category, and reinstatement 
requests per year, the Agency has determined that the per unit cost of 
processing such requests is $198 and adopts this amount as the fee to 
be collected for the future processing of extension, change of 
category, and reinstatement requests. The Agency has also identified 
that $92,402 in direct costs from salary and benefits and $5,760 in 
allocable indirect costs are allocable to its processing of program 
designation requests. Based upon direct and indirect costs of $98,162 
and 126 requests for program designation, the agency has determined 
that the per unit cost of processing a program designation request is 
$779 and adopts this amount as the fee to be collected for future 
processing of program designation requests. Finally, the agency has 
examined the number of man-hours devoted to the processing of non-
routine ``expedited'' or ``urgent'' requests for the Form IAP-66 and 
has determined that 127.5% of one full time equivalent position at the 
program staff assistant level is allocable to the processing of such 
requests. The Agency has determined that $57,775 in direct costs from 
salary and benefits and $4,950 in indirect costs are allocable to the 
processing of non-routine ``expedited'' or ``urgent'' requests for the 
Form IAP-66 submitted by designated sponsors. Based upon direct and 
indirect costs of $62,725 and 1,461 such requests, the Agency has 
determined that the per unit cost of processing a non-routine request 
for the Form IAP-66 is $43 and adopts this amount as the fee to be 
collected for future processing of non-routine requests for the Form 
IAP-66 submitted by designated sponsors. All fees are non-refundable.

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 regarding this rule until November 
30,
1999. 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: September 21, 1999.
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).

Subpart H--Fees

    2. Section 514.90 is revised to read as follows:


Sec. 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 or 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
Request for program extension--$198
Request for change of program category--$198
Request for reinstatement--$198
Request for program designation--$779
Request for non-routine handling of an IAP-66 Form request--$43.

[FR Doc. 99-24960 Filed 9-24-99; 8:45 am]
BILLING CODE 8230-01-M