[Federal Register Volume 78, Number 93 (Tuesday, May 14, 2013)]
[Rules and Regulations]
[Pages 28137-28139]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11484]


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

DEPARTMENT OF STATE

22 CFR Part 62

RIN 1400-AD28
[Public Notice 8322]


Exchange Visitor Program--Fees and Charges

AGENCY: Department of State.

ACTION: Final rule.

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

SUMMARY: The U.S. Department of State (Department) is revising 
regulations to increase the Application Fee for Sponsor Designation or 
Redesignation and the Administrative Fee for Exchange Visitor (J-1 Visa 
Holder) Benefits assessed for providing Exchange Visitor Program 
services, in order to recoup the costs incurred by the Department's 
Bureau of Educational and Cultural Affairs associated with operating 
the Exchange Visitor Program.

DATES: Effective Date: This rule is effective June 13, 2013.

FOR FURTHER INFORMATION CONTACT: Robin J. Lerner, Deputy Assistant 
Secretary for Private Sector Exchange, U.S. Department of State, SA-5, 
Floor 5, 2200 C Street NW., Washington, DC 20522, 202-632-9290, or 
email at [email protected].

SUPPLEMENTARY INFORMATION: The Department published a proposed rule on 
January 30, 2013 (RIN 1400-AD28; 78 FR 6263), with a request for 
comments, to amend 22 CFR 62.17 (``Fees and Charges'') to increase fees 
to recover the costs of administrative processing of requests for 
program designation or redesignation, and certain services for exchange 
visitor benefits. These costs were calculated by an independent, 
certified public accounting firm following the guidelines set forth in 
Office of Management and Budget (OMB) Circular A-25 regarding such fee 
calculation.
    The Department received thirteen comments and is now promulgating a 
final rule with no changes from the proposed rule. Thus, the 
application fee charged to U.S. corporate entities will increase to 
$3,982.00 for program designation and redesignation. The individual 
program services fee paid by foreign nationals will increase to $367.00 
for services such as change of program category, program extensions and 
reinstatements.

Comment Analysis

    The Department received thirteen comments. One comment suggested 
that the Exchange Visitor Program be shut down and the other, from a 
foreign national, requested assistance on visas and travel. These 
comments were not responsive to the proposed rule.
    Three comments represented the academic community and supported the 
proposed rule. One commenter stated that the fees should be adopted and 
believes that the Department cannot prevent abuses to the program if 
the Office of Designation limits itself, as it does now, to some 13 
staff members monitoring more than 1,400 separate and distinct 
sponsors. Two comments did not object to the increases, but requested 
that sufficient time be allowed so that academic institutions could 
properly budget for the 47% increase in the application fee. The 
Department's fee schedule is reviewed and implemented on a two-year 
cycle. Delaying the fee increases for all sponsors is not feasible.
    In addition, one of the three commenters who expressed support for 
the proposed rule requested clarification as to whether designation 
fees paid by private sector program sponsors were also meant to cover 
the cost of administering U.S. Government exchange programs. 
Designation fees paid by private sector program sponsors do not 
currently fund the administration of U.S. Government exchange programs, 
and the Department does not anticipate that private sector programs 
would cover the cost of administering such exchange programs in the 
future.
    A total of eight comments oppose the proposed increase in fees. One 
comment inquired about the purpose of increasing the application fee 
since the Department has imposed a moratorium on new sponsor 
applications for the Summer Work Travel category of the Exchange 
Visitor Program. Once the Department has completed the comprehensive 
review of the Summer Work Travel category, it is anticipated that the 
moratorium will be lifted.
    Another comment opposed the increase and stated that the opposition 
was ``due to the Department's failure to adequately demonstrate its 
best use of resources and lack of timely and knowledgeable response 
time to questions and application requests.'' According to this 
commenter, the requirement to provide increased oversight of the 
Exchange Visitor Program over the last two years has diverted resources 
away from the administrative processing of stakeholder requests. The 
increase in fees is designed to facilitate the hiring of additional 
staff to manage the administrative workload in a timely fashion, 
increase the Office of Designation's efficiency and enhance the 
office's customer service. Five

[[Page 28138]]

commenters opposed the proposed administrative fee and noted the impact 
it will have on au pair participants wishing to extend their program 
beyond the twelve-month maximum duration. The Department designed the 
administrative fee to recoup the cost to the Department of processing 
the action for the participant, regardless of category.
    Finally, one commenter opposed the fee structure and questioned 
whether applications for designation and redesignation undergo the same 
level of review. The commenting party also noted that both large and 
small sponsors are charged the same application fee, and suggested that 
the fee structure be based on program size. The Department recognizes 
that, in general, processing designation and redesignation applications 
does not require the same level of review. The Department also 
recognizes that there is an on-going relationship between the parties 
once a sponsor becomes designated. This relationship involves program 
monitoring, responding to sponsor inquiries, processing of requests 
whose costs are not recouped through administrative fees, and other 
activities, all of which must be funded.
    Program size has minimal impact on the level of effort associated 
with processing redesignation applications, since the Office of 
Designation has to review and assess the same factors and the same 
documents.

Regulatory Findings

Administrative Procedure Act

    The Department of State is of the opinion that the Exchange Visitor 
Program is a foreign affairs function of the U.S. Government and that 
rules implementing this function are exempt from section 553 
(Rulemaking) and section 554 (Adjudications) of the Administrative 
Procedure Act (APA). The U.S. Government supervises programs that 
invite foreign nationals to come to the United States to participate in 
exchange visitor programs, either directly or through private sector 
program sponsors or grantees. When problems occur, the U.S. Government 
often has been, and likely will be, held accountable by foreign 
governments for the treatment of their nationals, regardless of who is 
responsible for the problems.
    The purpose of this rulemaking is to set the fees that will fund 
services provided by the Exchange Visitor Program Office of Designation 
to more than 1,400 sponsor organizations and 300,000 Exchange Visitor 
Program participants. These services include oversight and compliance 
with program requirements, as well as the monitoring of programs to 
ensure the health, safety and well-being of foreign nationals entering 
the United States (many of these exchange programs and participants are 
funded by the U.S. Government) under the aegis of the Exchange Visitor 
Program and in furtherance of its foreign relations mission. The 
Department of State represents that failure to protect the health and 
well-being of these foreign nationals and their appropriate placement 
with reputable organizations will have direct and substantial adverse 
effects on the foreign affairs of the United States.
    Although the Department is of the opinion that this rulemaking is 
exempt from the rulemaking provisions of the APA, the Department 
published this rulemaking as an NPRM and solicited comments, without 
prejudice to its determination that this rulemaking concerns a foreign 
affairs function of the Department.

Regulatory Flexibility Act/Executive Order 13272: Small Business

    As discussed above, the Department believes that this final rule is 
exempt from the provisions of 5 U.S.C. 553. This final rule is not 
subject to the requirements of the Regulatory Flexibility Act (5 U.S.C. 
601, et seq.) or Executive Order 13272.

Unfunded Mandates Reform Act of 1995

    This rulemaking will not result in the expenditure by State, local 
and tribal governments, in the aggregate, or by the private sector, of 
$100 million 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.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    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 pre-empt tribal law. 
Accordingly, the provisions of Executive Order 13175 do not apply to 
this rulemaking.

Small Business Regulatory Enforcement Fairness Act of 1996

    Based on the criteria of 5 U.S.C. 804(2), the Department does not 
believe this rulemaking will have an annual effect on the economy of 
$100,000,000 or more. The Department estimates that approximately 60 
government, academic and private sector programs apply for designation 
annually, and approximately 700 of the currently-designated sponsors 
apply for redesignation annually. Therefore, 760 organizations will be 
required to pay the application fee, which amounts to a total of 
$3,026,320, an increase of $974,320 from the current application fee of 
$2700 ($3,026,320-$2,052,000). This is the only monetary effect on the 
economy that the Department is able to identify.
    A rule is also considered ``major'' if it will result in a major 
increase in costs or prices for consumers, individual industries, 
Federal, state or local government agencies, or geographic regions. The 
Department does not anticipate that this rule will have any effect at 
all on those categories. Finally, a rule is considered major if it will 
have 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 foreign markets. The Department knows of no adverse 
effects, much less significant adverse effects, on any of those 
categories.
    This rulemaking has been found not to be a major rule within the 
meaning of 5 U.S.C. 804.

Executive Order 13563 and Executive Order 12866

    As discussed above, the Department is of the opinion that the 
Exchange Visitor Program is a foreign affairs function of the United 
States Government and that rules governing the conduct of this function 
are generally exempt from the requirements of Executive Order 12866. 
However, the Department has nevertheless reviewed this final rule to 
ensure its consistency with the regulatory philosophy and principles 
set forth in that Executive Order.
    The Department has examined the economic benefits, costs, and 
transfers associated with this rule, and declares that educational and 
cultural exchanges are both cornerstones of U.S. public diplomacy and 
an integral component of U.S. foreign policy. The benefits of these 
exchanges to the United States and its people are invaluable and cannot 
be monetized; in the same way, even one exchange visitor having a bad 
experience or, worse, being mistreated, will result in embarrassment 
and incalculable harm to the foreign policy of the United States. 
Therefore, the Department is of the opinion that the benefits of this 
rulemaking outweigh its costs.

[[Page 28139]]

Executive Order 12988

    The Department has reviewed this rulemaking in light of Executive 
Order 12988 to eliminate ambiguity, minimize litigation, establish 
clear legal standards, and reduce burden.

Executive Orders 12372 and Executive Order 13132

    This rulemaking 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 Executive 
Order 13132, it is determined that this rulemaking 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 rulemaking.

Paperwork Reduction Act

    The information collection requirements contained in this 
rulemaking are pursuant to the Paperwork Reduction Act, 44 U.S.C. 
Chapter 35 and OMB Control Number 1405-0147, expiring on November 30, 
2013.

List of Subjects in 22 CFR Part 62

    Cultural exchange program.

    Accordingly, 22 CFR part 62 is amended as follows:

PART 62--EXCHANGE VISITOR PROGRAM

0
1. The authority citation for part 62 continues to read as follows:

    Authority:  8 U.S.C. 1101(a)(15)(J), 1182, 1184, 1258; 22 U.S.C. 
1431-1442, 2451 et seq.; Foreign Affairs Reform and Restructuring 
Act of 1998, Pub. L. 105-277, Div. G, 112 Stat. 2681 et seq.; 
Reorganization Plan No. 2 of 1977, 3 CFR, 1977 Comp. p. 200; E.O. 
12048 of March 27, 1978; 3 CFR, 1978 Comp. p. 168; the Illegal 
Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 
1996, Pub. L. 104-208, Div. C, 110 Stat. 3009-546, as amended; 
Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism Act of 2001 (USA 
PATRIOT ACT), Pub. L. 107-56, Sec. 416, 115 Stat. 354; and the 
Enhanced Border Security and Visa Entry Reform Act of 2002, Pub. L. 
107-173, 116 Stat. 543.

0
2. Section 62.17 is revised to read as follows:


Sec.  62.17  Fees and charges.

    (a) Remittances. Fees prescribed within the framework of 31 U.S.C. 
9701 must be submitted as directed by the Department and must be in the 
amount prescribed by law or regulation.
    (b) Amounts of fees. The following fees are prescribed.
    (1) For filing an application for program designation and/or 
redesignation (Form DS-3036)--$3,982.00.
    (2) For filing an application for exchange visitor status changes 
(i.e., extension beyond the maximum duration, change of category, 
reinstatement, reinstatement-update SEVIS status, ECFMG sponsorship 
authorization, and permission to issue)--$367.00.

     Dated: May 8, 2013.
Robin J. Lerner,
Deputy Assistant Secretary for Private Sector Exchange, Bureau of 
Educational and Cultural Affairs, Department of State.
[FR Doc. 2013-11484 Filed 5-13-13; 8:45 am]
BILLING CODE 4710-05-P