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  • News: DOS Publishes Final Rule On Exchange Visitor Program Fees and Charges

    Federal Register, Volume 78 Issue 93 (Tuesday, May 14, 2013)
    [Federal Register Volume 78, Number 93 (Tuesday, May 14, 2013)]
    [Rules and Regulations]
    [Pages 28137-28139]
    From the Federal Register Online via the Government Printing Office [www.gpo.gov]
    [FR Doc No: 2013-11484]
    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 JExchanges@state.gov.
    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 
        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 
    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 
        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 
    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 
        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 
        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, 
    List of Subjects in 22 CFR Part 62
        Cultural exchange program.
        Accordingly, 22 CFR part 62 is amended as follows:
    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.
    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
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