[Federal Register Volume 63, Number 123 (Friday, June 26, 1998)]
[Rules and Regulations]
[Pages 34808-34810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16653]
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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 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
[[Page 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
[[Page 34810]]
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
Sec. 514.90 to read as follows:
Subpart H--Fees.
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 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